Burgett; BARRIE WAGERS, by and through her father nfr Lyde Wagers v. Kentucky High School Athletic Association

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0096P (6th Cir.)
File Name: 00a0096p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LORRIE ANN HORNER, by and
through her father nfr Haskel
Horner; J ENNIFER BAKER, by
and through her father nfr
Douglas Baker; J ULIANA
BROWN , by and through her
father nfr Michael Brown;
ANGELLA C HAFFIN , by and
through her father nfr Dale
Chaffin; TRACY DOTSON , by
and through her father nfr
Sherman Dotson; J ACQUELINE
ELSTON , by and through her
father Joseph Elston; AMY
HACKER, by and through her
father nfr Chris Hacker;
ELIZABETH S UZANNE
HARTLAGE , an adult; KELLY
J OHNSON , by and through her
father nfr Charles Johnson;
M ARY C HRISTINE
W HITELOCK, an adult,
Plaintiffs-Appellants,
LESLIE BURGETT , by and
through her father nfr Billy
;>

No. 97-6264

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2 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
Burgett; BARRIE W AGERS, by
and through her father nfr
Lyde Wagers,
Plaintiffs,
v.
KENTUCKY HIGH S CHOOL
ATHLETIC ASSOCIATION ;
KENTUCKY S TATE BOARD
FOR ELEMENTARY AND
S ECONDARY EDUCATION ,
Defendants-Appellees.

1
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 92-00295—Edward H. Johnstone,
Senior District Judge.
Argued: February 3, 1999
Decided and Filed: March 20, 2000
Before: JONES, NORRIS, and SUHRHEINRICH, Circuit
Judges.
_________________
COUNSEL
ARGUED: Gregory W. Butrum, Louisville, Kentucky, for
Appellants. Danny C. Reeves, GREENEBAUM, DOLL &
McDONALD, Lexington, Kentucky, Robert E. Stopher,
BOEHL, STOPHER & GRAVES, Louisville, Kentucky, for
Appellees. ON BRIEF: Donald E. Armstrong, Louisville,
Kentucky, for Appellants. Danny C. Reeves, Roger G.

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No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
3
Wright, GREENEBAUM, DOLL & McDONALD,
Lexington, Kentucky, Robert E. Stopher, BOEHL, STOPHER
& GRAVES, Louisville, Kentucky, for Appellees.
SUHRHEINRICH, J., delivered the opinion of the court, in
which NORRIS, J., joined. JONES, J. (pp. 26-41), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Plaintiffs, a group of
female student athletes attending Kentucky high schools,
appeal following remand from the district court’s order
granting summary judgment to Defendant state school board
and school athletic association on Plaintiffs’ claim of sexual
discrimination under Title IX of the Education Amendments
of 1972, as amended by the Civil Rights Restoration Act of
1987 (20 U.S.C. §1681) ("Title IX"). Plaintiffs also appeal
the denial of their post-judgment motion for attorneys’ fees.
We AFFIRM.
I. BACKGROUND
In 1992, Plaintiffs sued Defendants Kentucky High School
Athletic Association (“Association”) and the Kentucky State
Board for Elementary and Secondary Education (“Board”),
claiming that the Association's failure to sanction fast-pitch
softball violated the Equal Protection Clause of the
Fourteenth Amendment, 42 U.S.C. §1983, Title IX, Section
3 of the Constitution of the Commonwealth of Kentucky, and
Title XXVII, Labor and Human Rights, Chapter 344, Civil
Rights (Ky. Rev. Stat. Ann. § 344.020(1)(b) (Banks-Baldwin
1997)). Specifically, Plaintiffs alleged that Defendants’
failure to sponsor fast-pitch softball for female students
diminished the ability of female student athletes to compete
for college fast-pitch softball athletic scholarships when
compared with male student athletes who played high school

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4 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
baseball and then competed for college baseball athletic
scholarships. Plaintiffs requested declaratory and injunctive
relief sanctioning fast-pitch softball for girls, compensatory
damages, certification as a class, attorneys’ fees, and costs.
The Board and Association defended on the basis of its “25
percent” rule, whereby a new sport would not be sanctioned
unless at least 25 percent of the member schools indicated a
willingness to participate. At the time the lawsuit was filed,
two surveys, in 1988 and 1992 respectively, revealed that the
member schools indicated only a 9 percent (1988) and a 17
percent (1992) interest in fast-pitch softball for girls.
The district court granted Defendants’ motions for
summary judgment, holding that: (1) Defendants had
complied with Title IX because they had offered equal
opportunities in accordance with the interests and abilities of
students; and (2) Defendants had complied with the Equal
Protection Clause because they permitted students to
participate in sanctioned sports without gender restriction.
Plaintiffs appealed, and this Court affirmed in part and
reversed in part. See Horner v. Kentucky High School
Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994) (Horner I).
Horner I affirmed the judgment for Defendants on
Plaintiffs’ equal protection claim because Plaintiffs failed to
prove that Defendants intentionally discriminated against
them, as required by the Equal Protection Clause. See id. at
276. The court held that Plaintiffs had not alleged that
Defendants adopted or adhered to the 25 percent rule because
of rather than in spite of its disparate impact on females and
that sheer disparate impact is insufficient to demonstrate an
equal protection violation. The Horner I panel reversed the
judgment for Defendants on Plaintiffs’ Title IX claim,
however, finding that issues of fact “abound[ed].” See id. at
275.
While Plaintiffs’ first appeal was pending in this Court, the
Kentucky General Assembly amended the statute regulating
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
41
119 S.Ct. at 1671.
discriminatory effect is a requirement of Title IX. Because
Defendants are charged with knowledge of the law, but did
not recognize fast-pitch softball until 1994, it follows that
remand is appropriate to determine whether Defendants were
deliberately indifferent to Plaintiffs’ Title IX rights.
For the foregoing reasons, I would reverse the district
court’s dismissal of Plaintiffs’ claims of monetary relief and
remand for a determination of whether Defendants were
deliberately indifferent to Plaintiffs’ Title IX rights in
accordance with Davis. I would also reserve judgment as to
whether Plaintiffs were “prevailing parties” for attorney fees
purposes until after the remand.
V.
Because I believe that the basis for the majority’s
affirmance is contrary to the remedial purposes of Title IX, I
dissent.

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40 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
4The Policy Interpretation has been cited with approval by several
courts, including this one. See Horner, 43 F.3d at 273-74; Cohen v.
Brown Univ., 101 F.3d 155, 166 (1st Cir. 1996).
5Although similar reasoning with respect to Title VI’s regulations
failed to garner a majority view in Guardians, see 463 U.S. at 628-32
(Marshall, J., dissenting), there is every reason now, in the fullness of
subsequent developments, to accord much more force to Justice
Marshall’s convincing arguments with regard to Title IX. Another reason
why the Alexander Court limited Guardians to Title VI cases was
because, by the time § 504 was enacted, Title VI had been in force for
nearly a decade. See Alexander, 469 U.S. at 294-95 n.11. Title VI’s
enforcement regulations had incorporated a disparate impact standard, and
nearly 40 federal agencies had adopted standards in which Title VI was
interpreted to bar programs with a discriminatory impact. See Guardians,
463 U.S. at 629-30 (Marshall, J., dissenting). In Alexander, the Court
theorized that because Congress was well-aware of Title VI regulations
prohibiting a discriminatory effect, but took no steps to restrict the
remedies available under § 504 (which was based on Title VI), then
Congress implicitly rejected an “intentional” standard for § 504
violations. Alexander, 469 U.S. at 294-95 n.11. Because Title IX was
enacted only one year before § 504, it seems safe to suggest that the same
implicit assumption applies to Title IX. Indeed, because Davis relies on
the Department of Education’s Title IX regulations as providing adequate
notice to defendants of their Title IX obligations, Davis is a validation of
Justice Marshall’s arguments in the context of Title IX cases. See Davis,
IX. See Title IX of the Education Amendments of 1972; A
Policy Interpretation; Title IX and Intercollegiate Athletics,
44 Fed. Reg. 71,413 (Dec. 11, 1979).4 The Policy
Interpretation explicitly states that a finding of compliance or
noncompliance with Title IX would be based in part on
whether the federal funding recipient’s athletic programs “are
discriminatory in language or effect[.]” Id. at 71,417, 71,418;
see also 34 C.F.R. § 106.41(c)(1) (“[w]hether the selection of
sports and levels of competition effectively accommodate the
interests and abilities of members of both sexes” is to be
considered for Title IX compliance). These regulations
provided clear notice to defendants of their Title IX
obligations. See Davis, 119 S.Ct. at 1671, 1673 (Title IX
regulations inform federal funding recipients of their
contractual duties).5 Providing an environment free from
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
5
1The following language was added to this bylaw, effective for the
1995-96 school year:
To qualify as having “sponsored” a sport, a school must be able
to demonstrate the following:
(1) If similar versions of a particular sport exist and there are
differences in the scholarship opportunities at the NCAA level
in that sport, a survey must be taken of the student population at
reasonable times and places to determine the level of interest in
the sport(s).
(2) If said survey reveals sufficient interest to field the normal
squad required for play in the particular sport and if any version
of the sport is to be played, the school shall make facilities, staff,
and other allowances to properly field a team in the version of
the sport for which the NCAA members offer scholarships.
KHSAA Bylaw 40 §2(1), (2).
high school sports. See Ky. Rev. Stat. § 156.070(2) (Banks-
Baldwin 1995) (effective July 15, 1994). Where a school
offered one of two similar sports, the amended statute
directed the Board and the Association to promulgate
regulations to offer the sport for which the National
Collegiate Athletic Association (“NCAA”) offers athletic
scholarships. In response to the passage of § 156.070(2), the
Association amended its Bylaw 40, to state:
If a member school sponsors or intends to sponsor an
athletic activity that is similar to a sport for which NCAA
members offer an athletic scholarship, the school shall
sponsor the athletic activity or sport for which the
scholarships are offered. The athletic activities which are
similar to sports for which NCAA members offer
scholarships are: Girls' fast pitch softball as compared to
slow pitch.
KHSAA Bylaws, Div. IV, Bylaw 40.1

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6 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
On remand, the district court again granted summary
judgment for Defendants. The district court held that: (1)
Plaintiffs’ claims for class certification, injunctive relief, and
declaratory relief under Title IX were moot because of the
amendment to Ky. Rev. Stat. Ann. § 156.070; (2) the Title IX
claims of Plaintiffs who had graduated were also moot; and
(3) Plaintiffs’ claims for monetary damages under Title IX
failed because Plaintiffs had presented no evidence of
intentional discrimination.
Plaintiffs moved to alter judgment and also moved for
attorneys’ fees. The district court denied both motions.
Regarding attorneys’ fees, the district court found that
Plaintiffs had received no relief on the merits of their claim,
and that there was no proof that Plaintiffs had been the
catalyst for Defendants’ policy change. Plaintiffs appeal.
II. DISCUSSION
On appeal, Plaintiffs challenge the district court’s refusal to
grant money damages under Title IX and its denial of their
request for attorneys’ fees.
A. Compensatory Damages
Plaintiffs argue that the district court erred in granting
summary judgment because the Horner I panel did not hold
that there was no evidence of intentional discrimination by
Defendants regarding Title IX. Plaintiffs further contend that
Title IX does not require intentional discrimination to recover
damages. Finally, Plaintiffs argue that if monetary damages
are premised upon a finding of intentional discrimination,
Defendants’ gender-based classification meets that standard.
We address Plaintiffs’ second argument first.
1. Intent Requirement
Plaintiffs contend that a lack of intentional discrimination
does not always preclude a plaintiff from recovering money
damages under Title IX. Plaintiffs’ claim notwithstanding,
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
39
Defendants have complied with Title IX’s equal opportunity
mandate.” 43 F.3d at 275. On this basis, it reversed the
district court’s entry of summary judgment for Defendants.
Nevertheless, the majority now states that Horner I “did not
hold that Plaintiffs made out a prima facie case of a Title IX
violation,” Ante at 21, and proceeds to grant summary
judgment. I believe that rather than giving Horner I its proper
effect, this reading simply echoes the dissent in Horner I,
which also reasoned that because Plaintiffs “did not present
a prima facie case of a Title IX violation,” summary judgment
should have been granted on the Title IX claim. 43 F.3d at
276 (Batchelder, J., dissenting in part). Similarly, when the
current majority now concludes that summary judgment is
warranted because Plaintiffs have “failed to offer any
additional evidence” that Title IX had been violated, it again
runs roughshod over the Horner I conclusion that there was
a sufficient dispute in the record to withstand summary
judgment. Yet again, the majority’s conclusion more closely
adheres to the Horner I dissent, which found the record
“silent or otherwise inadequate” on the issues “upon which
the plaintiffs’ case depends,” and which castigated the
Plaintiffs’ statistics showing a disparity between boys’ and
girls’ participation in Kentucky high school sports. 43 F.3d
at 277 (Batchelder, J., dissenting in part). In sum, I do not
believe this Court should stamp its approval on the district
court’s clear mishandling of the Horner I remand, let alone
rewrite the conclusion of Horner I’s majority in the voice of
its dissent.
Second, contrary to the majority, I believe it is certainly
possible that the standards of notice and deliberate
indifference could be met in this case. Defendants were, after
all, the sole entities that could sanction interscholastic sports
in Kentucky, and implemented slow pitch softball in 1982.
Nor can Defendants argue that they would be unfairly
“surprised” by imposition of a monetary award, as were the
defendants in Guardians. Three years before Defendants
sanctioned slow-pitch softball, the Department of Health,
Education and Welfare issued its Policy Interpretation of Title

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38 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
caused by a “neutral policy.” In each situation, the student is
being denied the use of school resources on the basis of her
gender–precisely the evil Title IX was designed to prevent.
And in each situation, the defendant is “well aware” of the
deprivation of opportunities. It follows that in each situation,
monetary relief should be available.
IV.
Finally, I disagree with the majority’s decision to overlook
the district court and magistrate court’s error below, an error
which I believe deprived Plaintiffs of the opportunity to
satisfy the deliberate indifference standard. Our reviewing
responsibility is to correct error, not rationalize it.
The majority concedes that the magistrate court was
“technically incorrect” in holding that the Horner I opinion
established that there was no intentional discrimination for
Title IX purposes as a matter of law. Ante at 16. As the
majority acknowledges, the original panel held “that there
were genuine issues of fact regarding a Title IX violation.”
Id. Yet the magistrate court improperly applied the Horner I
panel’s summary judgment on the equal protection claim to
the Title IX claim, concluding, as a matter of law, that there
was no intentional discrimination under Title IX. J.A. at 340.
It further stated that Plaintiffs had not offered additional
evidence regarding intentional discrimination since the
remand, and thus declared Plaintiffs’ claim for monetary
damages “not viable.” J.A. at 340. Despite this clear
misreading of Horner I, rather than remanding for the district
court to assess whether Defendants were deliberately
indifferent to Plaintiffs’ Title IX rights, the majority still finds
for Defendants.
I find this result unacceptable. First, I think the majority’s
discussion improperly revisits and re-decides the dispute
already resolved by Horner I. Over a dissent, the Horner I
majority concluded that “genuine issues of material fact
abound in this case, and preclude any determination that
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
7
proof of intent, however defined, is the sine qua non to
compensatory relief for any type of Title IX violation. A
brief history of the key Title IX cases makes that clear. In all
of the relevant cases, the Supreme Court has consistently
invoked a “contract” rationale: that under Spending Clause
legislation, the relationship between the government and the
federal funding recipient is consensual. A recipient should
therefore not be subject to money damages unless it has notice
that it will be liable for the conduct at issue.
In 1979, the Supreme Court first construed an implied
private right of action under Title IX. See Cannon v.
University of Chicago, 441 U.S. 677 (1979). The Court
reasoned that because Title IX was patterned after Title VI of
the Civil Rights Act of 1964, which has been construed as
containing an implied private right of action, “[t]he drafters
of Title IX explicitly assumed that it would be interpreted and
applied as Title VI had been [interpreted and applied].” Id. at
696. See also Guardians Ass’n v. Civil Serv. Comm’n of New
York City, 463 U.S. 582, 594 (1983) (plurality) (noting that a
major part of the analysis in Cannon was “that Title IX had
been derived from Title VI, that Congress understood that
private remedies were available under Title VI, and that
Congress intended similar remedies to be available under
Title IX”).
The relationship between monetary damages and proof of
intent emerged in Guardians, a Title VI case. There, Black
and Hispanic police officers sued for damages under Title VI,
alleging that their layoffs under the police department’s last-
hired, first-fired policy were discriminatory. The plaintiff
officers claimed that the policy disproportionately affected
them because they had lower scores on qualifying
examinations than White applicants and accordingly were
hired later than higher scoring White applicants. Thus, when
it came layoffs, Black officers were laid-off before White
officers who had been hired before plaintiffs because of their
higher qualifying examinations. The district court
acknowledged the discriminatory impact of the policy but,

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8 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
2Justice White explained the fractured votes as follows:
Despite the numerous opinions, the views of at least five
Justices on two issues are identifiable. The dissenters, Justices
BRENNAN, MARSHALL, BLACKMUN, AND STEVENS,
join with me to form a majority for upholding the validity of the
regulations incorporating a disparate-impact standard. See n.2,
supra. A different majority, however, would not allow
compensatory relief in the absence of proof of discriminatory
intent. Justice REHNQUIST and I reach this conclusion
directly. See Parts II and IV, supra; post, at 3237
(REHNQUIST, J., concurring in the judgment). Justice
POWELL, joined by THE CHIEF JUSTICE, post at 3235,
believe that no private relief should ever be granted under Title
VI under any circumstances. Justice O’CONNOR, post, at
3237, would hold that all relief should be denied unless
discriminatory intent is proven. It follows from the views of
these latter three Justices that no compensatory relief should be
awarded if discriminatory animus is not shown.
Id. at 607 n.27 (White, J.).
nevertheless, found that the plaintiffs failed to prove that the
defendant had acted with discriminatory intent.
The plaintiffs appealed the issue of whether Title VI
requires proof of discriminatory intent. See id. at 584.
Although a fractured ruling, a majority of the Court held that
Title VI supports a private right of action providing limited
declarative and injunctive relief for unintentional violations.
See id. at 602. A different majority of the Court rejected the
plaintiffs’ argument that monetary damages were available for
unintentional discrimination.2 Although his rationale for this
ruling did not gain a majority, Justice White explained that:
We have also indicated that “make whole” remedies
are not ordinarily appropriate in private actions seeking
relief for violations of statutes passed by Congress
pursuant to its “power under the Spending Clause to
place conditions on the grant of federal funds.”
Pennhurst State School v. Halderman, 451 U.S. 1, 15,
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
37
the present situation.” Ante at 13. On the other hand, the
majority concludes, Guardians is this case’s “equivalent.” Id.
Given that Davis holds that Title IX’s regulations put federal
funding recipients on notice of their contractual duties, and
given that the regulations state that Title IX is violated when
a school’s athletic policies are discriminatory in effect, the
majority’s distinguishing of Davis is without significance.
Furthermore, I can discern no practical difference between
Defendants’ “neutral policy” and a university’s failure
affirmatively to gauge the interest for fast-pitch softball
among its student body. I find it incongruent that liability
under the former should be measured by an “animus”
standard while the latter by a “deliberate indifference”
standard even though both violations arise under the same
statute.
I also believe that such a distinction finds no support in
Davis, as the Court again reminded us that Title IX protects
students, not schools:
Consider, for example, a case in which male students
physically threaten their female peers every day,
successfully preventing the female students from using a
particular school resource–an athletic field or a computer
lab, for instance. District administrators are well aware
of the daily ritual, yet they deliberately ignore requests
for aid from the female students wishing to use the
resource. The district’s knowing refusal to take any
action in response to such behavior would fly in the face
of Title IX’s core principles, and such deliberate
indifference may appropriately be subject to claims for
monetary damages.
Davis, 119 S.Ct. at 1675. I fail to see why the above rule does
not apply to Defendants in this case. If a Title IX defendant
intentionally deprives a student of educational opportunities
when it fails to curb harassment caused by third parties, then
surely a defendant likewise intentionally deprives students of
those opportunities when it fails to rectify athletic inequities

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36 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
1016 (5th Cir. 1996) (allowing recovery only upon showing
that school responded to harassment claims differently on the
basis of gender)). Rejecting Rowinsky and the very “animus”
standard urged by Defendants, the Court held that Title IX
“makes clear that . . . students must not be denied access to
educational benefits and opportunities on the basis of gender,”
and that such a denial of benefits is to be measured from a
“deliberate indifference” and/or an “actual knowledge”
standard. Id. at 1675.
In my view, Davis makes abundantly clear that the crucial
factor determining whether a defendant has intentionally
violated Title IX is notice. Besides, Davis was hardly a
revolutionary opinion. Rather, the decision marks the third
time that the Court has articulated a “deliberate indifference”
standard for Title IX liability in this decade. Both Gebser and
Franklin involved a Title IX lawsuit filed against a school
district after a teacher had sexually abused the student-
plaintiff. In Franklin, the Court authorized compensatory
damages under Title IX for the first time, reasoning that “[t]he
point of not permitting monetary damages for an unintentional
violation is that the receiving entity lacks notice that it will be
liable for a monetary award. The notice problem does not
arise in a case such as this, in which intentional
discrimination is alleged.” Franklin, 503 U.S. at 74-75. The
Court ruled that the defendant-school district had
“intentionally” violated Title IX because school officials were
“aware of and investigated [the teacher’s] sexual harassment
of Franklin and other female students [but] took no action to
halt it and discouraged Franklin from pressing charges against
[the teacher].” Id. at 64-65. Conversely, in a similar situation
six years later, the Court held that the defendant had not
intentionally violated Title IX because it had no notice of the
sexual harassment. See Gebser, 118 S.Ct. at 1999-2000
(noting that plaintiffs admitted that they could not prevail
under an “actual notice” standard).
The majority suggests that the meaning of Gebser and
Davis is unclear because they “are not readily analogous to
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
9
101 S. Ct. 1531, 1539, 67 L. Ed.2d 694 (1981). This is
because the receipt of federal funds under typical
Spending Clause legislation is a consensual matter: the
State or other grantee weighs the benefits and burdens
before accepting the funds and agreeing to comply with
the conditions attached to their receipt. . . .
Id. at 596 (White, J.).
In Franklin v. Gwinnett County Public Schools., 503 U.S.
60, 74 (1992), the Supreme Court explicitly established that
the implied right of action under Title IX in Cannon provides
a damages remedy. In Franklin, a student sued a school
district under Title IX, alleging that the school district knew
that she had been sexually harassed by a teacher, but did
nothing. The Court held that damages were not available for
Title IX violations from the school district unless the
discrimination was intentional. Significantly, Franklin
characterized the holding of Guardians the following way:
Though the multiple opinions in Guardians suggest that
the difficulty of inferring the common ground among the
Justices in that case, a clear majority expressed the view
that damages were available under Title VI in an action
seeking remedies for an intentional violation, and no
Justice challenged the traditional presumption in favor of
a federal court’s power to award appropriate relief in a
cognizable cause of action.
Id. at 70.
Justice White, this time writing for the majority, applied the
same Spending Clause analysis to Title IX that he used in
Guardians under Title VI:
In Pennhurst State School and Hospital v. Halderman,
. . . the Court observed that remedies were limited under
such Spending Clause statutes when the alleged violation
was unintentional. Respondents and the United States
maintain that this presumption should equally apply to

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10 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
intentional violations. We disagree. The point of not
permitting monetary damages for an unintentional
violation is that the receiving entity of federal funds lacks
notice that it will be liable for a monetary award. . . .
This notice problem does not arise in a case such as this,
in which intentional discrimination is alleged.
Franklin, 503 U.S. at 74-75 (citation omitted) (emphasis
added). Franklin did not, however, define the contours of the
school district’s liability in such a situation.
Gebser v. Lago Vista Independent School District, 524
U.S. 274, 118 S. Ct. 1989 (1998) took up that task. See id. at
__, 118 S. Ct. at 1995. There the Court held that a school
district may be held liable for damages under Title IX, but
only if the district had “actual notice” and was “deliberately
indifferent” to the underlying violation. See id. at 1999. In
Gebser, a high school student and her parents sued a school
district for damages under Title IX, alleging that a teacher
sexually harassed her. The Supreme Court rejected the use of
agency or negligence principles to render the school district
liable for monetary damages under Title IX. See id. at 1997
(“we conclude that it would ‘frustrate the purposes’ of Title
IX to permit a damages recovery against a school district for
a teacher’s sexual harassment based on principles of
respondeat superior or constructive notice, i.e., without actual
notice to a school district official”). Observing once again
that Title IX was modeled after Title VI, Justice O’ Connor,
writing for the majority, invoked the “contract” rationale of
Guardians:
Title IX’s contractual nature has implications for our
construction of the scope of available remedies. When
Congress attaches conditions to the award of federal
funds under its spending power, as it has in Title IX and
Title VI, we examine closely the propriety of private
actions holding the recipient liable in monetary damages
for noncompliance with the condition. Our central
concern in that regard is with ensuring “that the receiving
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
35
1982) (compensatory relief available for § 504 plaintiff; complaint gave
defendants adequate notice that they were charged with violating federal
antidiscrimination mandates); Love v. McBride, 896 F. Supp. 808, 810
(N.D. Ind. 1995) (refusing to accommodate plaintiff despite repeated
requests for access amounted to intentional discrimination), aff’d 103 F.3d
558 (7th Cir. 1996).
In each of these cases, the federal funding recipient denied equal
opportunity to the § 504 plaintiff by refusing to provide an
accommodation for the plaintiff’s disability. Surely there was no
“animus” against the disabled plaintiff either individually or as a class in
these cases. Rather, these defendants were “indifferent” to their federal
obligations– very much like defendants in Title IX athletic cases.
Nonetheless, the statutory violations were still “intentional” because the
defendants had full knowledge of their own discriminatory conduct. As
the Second Circuit explained:
[I]ntentional discrimination may be inferred when a
“policymaker acted with at least deliberate indifference to the
strong likelihood that a violation of federally protected rights
will result from the implementation of the [challenged] policy
. . . [or] custom.” Ferguson v. City of Phoenix, 931 F. Supp.
688, 697 (D. Ariz. 1996), aff’d and remanded, [157 F.3d 668
(9th Cir. 1998)] . . . ; see also Canton v. Harris, 489 U.S. 378,
385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).
Bartlett, 156 F.3d at 331. The Second Circuit’s understanding of
“intentional discrimination” is in perfect accordance with the Supreme
Court’s decision in Davis.
Finally, and most significantly, the Court was recently
presented in Davis with an opportunity to apply the animus
standard as a requisite for monetary recovery under Title IX,
but instead ruled that a “deliberate indifference” standard
would support a finding of intentional discrimination. In
Davis, the plaintiff brought a Title IX action after her
complaints of sexual harassment by a fellow classmate were
ignored by school officials. See Davis, 119 S.Ct. at 1666-67.
The Court noted that the circuits were split for the standard of
intentional discrimination in Title IX sexual harassment cases,
and that one circuit had endorsed the “animus” standard for
monetary recovery in Title IX cases. See id. at 1668-69
(citing Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006,

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34 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
2Bartlett was vacated in light of the Supreme Court’s recent decisions
limiting the scope of “disability” under the ADA. See Sutton v. United
Air Lines, Inc., 119 S.Ct. 2139 (1999); Murphy v. United Parcel Serv.,
Inc., 119 S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 119 S.Ct.
2162 (1999). Nevertheless, I still find Bartlett’s discussion of damages
to be a correct statement of the law.
3Incidentally, courts have been very hesitant to hold § 504 plaintiffs
to the “animus” standard as a requisite for compensatory relief. See, e.g.,
Bartlett,156 F.3d at 330-31; Greater Los Angeles Council on Deafness v.
Zolin, 812 F.2d F.2d 1103, 1106-09 (9th Cir. 1987) (allowing action for
monetary relief for discriminatory refusal to provide interpreters to deaf
plaintiffs); Miener v. State of Missouri, 673 F.2d 969, 978-79 (8th Cir.
1999);2 Moreno v. Texas Southern Univ., 573 F. Supp. 73, 77
(S.D. Tex. 1983) (recognizing that Justice White’s opinion on
damages was not the opinion of the Court); Tyler v. City of
Manhattan,118 F.3d 1400, 1414 (10th Cir. 1997) (Jenkins, J.,
dissenting).
My position that Justice White’s opinion must be kept
within its proper bounds is further supported by subsequent
Supreme Court decisions. A unanimous Court explained the
Guardians holding in an opinion issued the following term:
“A majority of the [Guardians] Court agreed that retroactive
relief is available to private plaintiffs for all discrimination,
whether intentional or unintentional, that is actionable under
Title VI.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624,
630 n.9 (1984). It seems to me that if the Guardians Court
did indeed limit compensatory relief to cases of intentional
discrimination involving discriminatory animus, such a
limitation would have been acknowledged in Consolidated
Rail Corporation’s explanation of Guardians. See Bartlett,
970 F. Supp. at 1148-49. Additionally, another unanimous
Court explicitly limited Guardians to situations involving
“factors peculiar to Title VI” when it refused to read an intent
requirement in § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq., which was another Spending Clause
antidiscrimination statute. See Alexander v Choate, 469 U.S.
287, 294-95 n.11 (1985).3
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
11
3The Gebser court also explained the distinction between Title IX
and VII:
That contractual framework distinguishes Title IX from Title
VII, which is framed in terms not of a condition but of an
outright prohibition. Title VII applies to all employers without
regard to federal funding and aims broadly to “eradicat[e]
discrimination throughout the economy.” Landgraf v. USI Film
Products, 511 U.S. 244, 254, 114 S. Ct. 1483, 1491, 128 L.
Ed.2d 229 (1994) (internal quotation marks omitted). Title VII,
moreover, seeks to “make persons whole for injuries suffered
through past discrimination.” Ibid. (internal quotation marks
omitted). Thus, whereas Title VII aims centrally to compensate
victims of discrimination, Title IX focuses more on “protecting”
individuals from discriminatory practices carried out by
recipients of federal funds. Cannon, supra, at 704, 99 S. Ct., at
1961-62. That might explain why, when the Court first
recognized the implied right under Title IX in Cannon, the
opinion referred to injunctive or equitable relief in a private
action, see 441 U.S., at 705, and n. 38, 710, n. 44, 711, 99 S. Ct.,
at 1962, and n. 38, 1964, n. 44, 1965, but not to a damages
remedy.
entity of federal funds [has] notice that it will be liable
for a monetary award.” Justice White’s opinion
announcing the Court’s judgment in Guardians Assn. v
Civil Serv. Comm’n of New York City, for instance,
concluded that the relief in an action under Title VI
alleging unintentional discrimination should be
prospective only, because where discrimination is
unintentional, “it is surely not obvious that the grantee
was aware that it was administering the program in
violation of the [condition].” We confront similar
concerns here. If a school district’s liability for a
teacher’s sexual harassment rests on principles of
constructive notice or respondeat superior, it will
likewise be the case that the recipient of funds was
unaware of the discrimination. It is sensible to assume
that Congress did not envision a recipient’s liability in
damages in that situation.
Gebser, 118 S. Ct. at 1998 (citations omitted).3

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12 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
Gebser, 118 S. Ct. at 1997-98.
Most recently, in Davis v. Monroe County Board of
Education, 119 S. Ct. 1661 (1999), the Supreme Court
considered whether a damages action under Title IX will lie
against a school board for student-on-student harassment.
Consistent with its earlier cases, the Davis Court held that
private damages actions are available only where federal
funding recipients act with “deliberate indifference” to
“known” acts of harassment. Again, the Court reasoned:
This Court has indeed recognized an implied private
right of action under Title IX, see Cannon v. University
of Chicago, supra, and we have held that money
damages are available in such suits, Franklin v. Gwinnett
County Public Schools, 503 U.S. 60, 112 S. Ct. 1028,
117 L.Ed.2d 208 (1992). Because we have repeatedly
treated Title IX as legislation enacted pursuant to
Congress’ authority under the Spending Clause, however,
see, e.g., Gebser v. Lago Vista Independent Schools,
supra, at 287, 118 S. Ct. 1989 (Title IX); Franklin v.
Gwinnett Public County Schools, supra, at 74-75, and n.
8, 112 S. Ct. 1028 (Title IX), see also Guardians Assn. v.
Civil Serv. Comm’n of New York City, 463 U.S. 582,
598-99, 103 S. Ct. 3221, 77 L.Ed.2d 866 (1983) (opinion
of White, J.) (Title VI), private damages actions are
available only where recipients of federal funding had
adequate notice that they could be liable for the conduct
at issue. When Congress acts pursuant to its spending
power, it generates legislation “much in the nature of a
contract: in return for federal funds, the States agree to
comply with federally imposed conditions.” Pennhurst
State School and Hospital v. Halderman, 451 U.S. 1, 17,
101 S. Ct. 1531, 67 L.Ed.2d 694 (1981). In interpreting
language in spending legislation, we thus “insis[t] that
Congress speak with a clear voice, “recognizing that
“[t]here can, of course, be no knowing acceptance [of the
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
33
1Justice White summarized the various votes as follows:
Despite the numerous opinions, the views of at least five Justices
on two issues are identifiable. The dissenters, JUSTICES
BRENNAN, MARSHALL, BLACKMUN, and STEVENS, join
with me to form a majority for upholding the validity of the
regulations incorporating a disparate-impact standard. See n. 2,
supra. A different majority, however, would not allow
compensatory relief in the absence of proof of discriminatory
intent. JUSTICE REHNQUIST and I reach this conclusion
directly. See Parts III and IV, supra; post, at 612
(REHNQUIST, J., concurring in judgment). JUSTICE
POWELL, joined by THE CHIEF JUSTICE, post, at 608-610,
believes that no private relief should ever be granted under Title
VI under any circumstances. JUSTICE O'CONNOR, post, at
615, would hold that all relief should be denied unless
discriminatory intent is proved. It follows from the views of
these three latter Justices that no compensatory relief should be
awarded if discriminatory animus is not shown.
Id. at 463 U.S. at 607 n. 27 (White, J.).
unintentional discrimination.1 Of the seven opinions filed in
that case, only Justice White’s opinion suggested a standard
for “intentional discrimination.” See id. at 584 (“I conclude
that . . . in the absence of proof of discriminatory animus,
compensatory relief should not be awarded to private Title VI
plaintiffs”) (White, J.); id. at 607 n.27 (same). Only one other
justice joined Justice White on this issue. See id. at 612
(Rehnquist, J., concurring in the judgment). Indeed, this
Court has already declined to take an expansive reading of
Justice White’s opinion in Guardians for the very reason that
it did not command a majority of the Court. See
Neighborhood Action Coalition v. Canton, Ohio, 882 F.2d
1012, 1015 (6th Cir. 1989); see also Bartlett v. New York
State Bd. of Law Exam’rs, 970 F. Supp. 1094, 1148-49 (S.D.
N.Y. 1997), aff’d in relevant part, 156 F.3d 321 (2d Cir.
1998), vacated on other grounds, 67 U.S.L.W. 3783 (June 24,

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32 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
athletic opportunities are more often–if not always– the result
of misperceptions, ignorance, or an unwillingness to alter the
status quo rather than a conscious decision to treat women
differently because they are women. Because the “animus”
standard ensures that Title IX defendants will be virtually
impervious to a money judgment, they have little incentive to
rectify any inequities in their athletic programs until judicially
directed. Instead, the“animus” standard allows defendants to
remain blissfully ignorant of their Title IX obligations with
little fear of having to pay damages for depriving their
students of equal athletic opportunities. For this reason, I
believe the standard is antithetical to the remedial purposes of
Title IX, frustrating, rather than promoting, the Act’s central
goals See Gebser, 118 S.Ct. at 2005 (Stevens, J., dissenting).
III.
Moreover, I believe the standard itself rests on flimsy legal
ground. The sole source for the“discriminatory animus”
standard is Justice White’s plurality opinion in Guardians,
463 U.S. at 584-607 (White, J.). In Guardians, a class of
minority civil employees in New York City brought an action
under Title VI of the Civil Rights Act of 1964, contending
that the city’s “last hired, first fired” policy had a disparate
effect on minority workers.
The issue in Guardians was “whether proof of
discriminatory intent [was] required to establish a violation of
Title VI[.]” Id. at 615 (Marshall, J., dissenting). Seven
opinions were filed in the Guardians case, in which a
consensus emerged twice. First, a majority of the Court
agreed that injunctive and declaratory relief were available for
so-called “unintentional” violations of Title VI. Second, a
different majority of the Court rejected the workers’ argument
that monetary damages were recoverable in cases of
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
13
terms of the putative contract] if a State is unaware of the
conditions [imposed by the legislation] or is unable to
ascertain what is expected of it.” Ibid; see also id., at 24-
25, 101 S. Ct. 1531.
Id. at __, 118 S. Ct. at 1669-70. Davis thus extended the rule
of Gebser to student-on-student sexual harassment when the
school officials are aware of the misconduct but do nothing to
stop it, despite its ability to exercise control over the situation.
In sum, although the Supreme Court has not yet expressly
ruled on the point, we think that it would likely hold that
proof of intentional discrimination is a prerequisite for money
damages under Title IX when a facially neutral policy is
challenged under a disparate impact theory. As the preceding
discussion illustrates, the Supreme Court has consistently
applied Justice White’s Spending Clause analysis as first
articulated in Guardians in its Title IX decisions. Given the
consensual relationship between federal agency and recipient,
the recipient must be aware of the conditions attached to the
receipt of those funds. As Justice White remarked in
Franklin, “The point of not permitting monetary damages for
an unintentional violation is that the receiving entity of
federal funds lacks notice that it will be liable for a monetary
award.” Franklin, 503 U.S. at 74. The dissent, in suggesting
that we are ignoring Title IX’s remedial purposes, completely
ignores this countervailing interest, which the intent
requirement seeks to accommodate. Thus, we conclude that
compensatory damages under Title IX are available when a
facially neutral policy is challenged only if an intentional
violation is shown.
This leaves the question of what standard to apply to
determine intent when a facially neutral policy is challenged.
Currently, the only clear test in the Supreme Court is that of
“deliberate indifference.” However, the cases from which
that test arose, Franklin, Gebser, and Davis, all address
deliberate indifference to sexual harassment, and are not
readily analogous to the present situation. See Pederson v.

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14 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
4For example, a deliberate indifference test might be appropriate
when Plaintiffs claim that defendant school officials had actual
knowledge of the disparate impact of their policies, either at the time of
enactment or when subsequently brought to their attention post-
enactment, and turn a blind eye. We can also perceive school officials
adopting a policy simply because of gender bias, without empirical
evidence of disparate effect. In this situation, we do not think that the
deliberate indifference test works, because it would be difficult for
Plaintiffs to prove actual knowledge of disparate impact. The
discriminatory animus test, albeit a stricter standard, might help Plaintiffs
Louisiana State Univ., ___ F.3d ___, Nos. 94-30680, 95-
30777, 96-30310, 97-30427, 97-30719, 2000 WL 19350, at *
21 (5th Cir., Jan. 27, 2000). In those cases the school district
was sued for its failure to prevent its agents from sexually
harassing a student (or engaging in some other form of
misconduct). Thus, “intent” in that context means “actual
notice” of the abuse by a third party and a failure to stop it.
This case is the Title IX equivalent of Guardians. In
Guardians, the district court acknowledged the disparate
impact of the defendant police department’s employment
policies but did not impose liability for damages because the
policies were not intentionally discriminatory. However, as
the dissent notes, only Justice White advocated a standard for
intentional discrimination when a facially neutral policy is
challenged, that of “discriminatory animus.” See Guardians,
463 U.S. at 584 (White, J.) (“I conclude that . . . in the
absence of proof of discriminatory animus, compensatory
relief should not be awarded to private Title VI plaintiffs”);
id. at 607 n.27 (same). The dissent nonetheless advocates the
“deliberate indifference” of Franklin, Gebser, and Davis; and
criticizes the discriminatory animus standard as
“overdemanding,” “near[ly] insurmountable,” and
“antithetical to the remedial purposes of Title IX.”
We can envision various scenarios in which the
discriminatory animus and deliberate indifference tests might
help establish “intent” under Title IX when a facially neutral
policy is challenged.4 However, because of Plaintiffs’
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
31
Yet, purported “unintentional” violations of Title IX are
pervasive in our educational institutions even a quarter-
century after the statute’s enactment. While much has
changed for female athletes since the passage of Title IX,
much remains the same. According to the Department of
Education, in 1997,
[a]t the high school level, there are still about 24,000
more boys’ varsity teams than girls’ teams; in college,
women receive only one-third of all athletic scholarships;
and, between 1992 and 1997, overall operating
expenditures for women’s college sports programs grew
only 89 percent, compared to 139 percent for men,
representing only 23 percent of the total operating
expenses.
United States Department of Education, Title IX: 25 Years of
Progress, Part 6 (1997). Another study conducted on Title
IX’s Silver Anniversary concluded that while there had been
“significant gains” in athletic opportunities for female college
students,
these gains still leave girls and women without their fair
share of opportunities to compete. Only 9 percent of
Division I colleges provide athletic opportunities for
women within 5 percentage points of women’s share of
enrollment. Even among Division I schools that do not
sponsor football, only 16 percent even come close to
providing women with athletic opportunities in
proportion to women’s enrollment in the student body.
National Women's Law Center, Title IX at 25: Report Card
on Gender Equity (1997). This study gave educational
institutions an overall grade of “C” for Title IX compliance in
athletic programs. Id.
Despite these recent statistics, I am not aware of any Title
IX athletic-equality case in which the plaintiff could have met
the overdemanding “animus” standard of intentional
discrimination. As explained above, gender inequities in

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30 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
available remedies in Title IX cases. See Franklin, 503 U.S.
at 72. Indeed, in 1986, Congress even abrogated the states’
Eleventh Amendment immunity in Title IX cases. See id.
Thus, the remaining question is whether an award of damages
to Plaintiffs in this case would frustrate the purposes of Title
IX.
In dicta, the majority appears to agree with Defendants’
argument that the “discriminatory animus” standard is
appropriate here. The Supreme Court has defined a
discriminatory animus towards women as having “a purpose
that focuses upon women by reason of their sex . . . directed
specifically at women as a class.” Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 269-70 (1993). I
believe that, short of a defendant actually defying a court
injunction, the “animus” standard will almost never be met in
a Title IX athletic-equity case. Cf. Guardians Ass’n v. Civil
Serv. Comm’n of New York City, 463 U.S. 582, 632 (1983)
(Marshall, J., dissenting).
The excuses for not maintaining gender equity in scholastic
athletic programs are all too familiar. School administrators
usually justify differences in athletic opportunities between
the sexes because of a misperceived lack of interest or ability
among female athletes, or because of a belief that altering the
status quo in athletic programs is not worth the inconvenience
or expense. See generally Cook v. Colgate Univ., 802 F.
Supp. 737, 746-50 (N.D. N.Y. 1992) (addressing various
defenses for college’s failure to grant varsity status to
women’s hockey team), vacated as moot, 992 F. 2d 17 (2d
Cir. 1993); Daniels v. School Bd. of Brevard Co., Fla., 995 F.
Supp. 1394, 1395 (M.D. Fla. 1997) (school board argued that
it was too expensive to remedy existing inequities between
softball and baseball programs); Pederson v. Louisiana State
Univ., 912 F. Supp. 892, 918 (M.D. La. 1996) (Title IX
violations were “result of arrogant ignorance, confusion
regarding the practical requirements of the law, and a
remarkably outdated view of women and athletics which
created the by-product of resistance to change”).
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
15
establish the requisite intent.
Recently, the Fifth Circuit held that the deliberate indifference test
applied in Title IX sexual harassment cases “ha[s] little relevance” in
determining whether an academic institution intentionally discriminated
on the basis of sex by failing to accommodate female athletes. See
Pederson v. Louisiana State Univ., ___ F.3d ___, Nos. 94-3068, 95-
30777, 96-30310, 97-30427, 97-30719, 2000 WL 19350, at * 21 (5th Cir.,
Jan. 27, 2000). According to Pederson, “[t]he proper test is not whether
[the school district] knew of or is responsible for the actions of others, but
whether [the school district] intended to treat women differently on the
basis of their sex by providing them unequal athletic opportunity.” Id. As
the Pederson court observed, classifications based on “archaic”
assumptions are facially discriminating, and “actions resulting from an
application of these attitudes constitutes intentional discrimination.” Id.
at * 20. However, as discussed, this case offers no proof of intentional
discrimination.
5For this reason, we disagree with the dissent’s contention that “[a]n
answer to [the] question [of whether the district court correctly concluded
that the plaintiffs produced no evidence of “intentional discrimination”]
will depend entirely on the definition of ‘intentional discrimination’
within the meaning of Title IX.”
fundamental failure to establish a violation of Title IX, let
alone an intentional violation,5 we need not adopt any test at
this time. This brings us to Plaintiffs’ second contention.
2. Plaintiffs’ Proofs
In holding that Plaintiffs’s Title IX claim for compensatory
damages failed for lack of proof of intentional discrimination,
the district court held that:
It is clear, as a matter of the law of the case, that there
was no intentional discrimination by defendants in this
case. Horner v. Kentucky High School Ass’n., 43 F.3d
265, 276 (6th Cir. 1994).3
[FN]3 The Sixth Circuit determined that plaintiffs
failed to offer sufficient evidence on the issue of
intentional discrimination to defeat defendants’

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16 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
6In the first appeal of this case, this Court, relying on Personnel
Administrator v. Feeney, 442 U.S. 256 (1979), recognized that
discriminatory intent requires a showing that the challenged policy was
adopted “because of, not merely in spite of, its adverse impact on persons
in the . . . class.” Horner, 43 F.3d at 276 (citing Feeney, 442 U.S. at 279)
(emphasis added).
Applying this rule, the Horner I panel ruled that:
Plaintiffs did not allege that defendants adopted or adhered
to the 25 percent rule because of rather than in spite of its
disparate impact on females. Nor did they come forward with
evidence of discriminatory intent, such as a tainted historical
background of the rule, or a circumstantially suspicious
sequence of events leading up to the rule. In short, plaintiffs
claimed only that sheer disparate impact was sufficient to
demonstrate an equal protection violation. This simply was not
enough to defeat the defendants' motion for summary judgment.
Id. (internal citation omitted).
motion for summary judgment on the Equal
Protection Claim. Plaintiffs have not offered any
additional evidence regarding intentional
discrimination since the case was remanded from the
Sixth Circuit.
(J.A. 340.)6 Plaintiffs contend that this ruling is wrong
because the Horner I panel’s ruling pertained only to their
Equal Protection Claim; and furthermore, that the Sixth
Circuit explicitly held that Plaintiffs had made their prima
facie case under Title IX.
Plaintiffs are correct that the ruling in Horner I regarding
intentional discrimination pertained only to their equal
protection claim. Thus, the district court was technically
incorrect in holding that the original panel’s decision was
“law of the case” as to Plaintiffs’ Title IX claim. Given the
Horner I panel’s holding that there were genuine issues of
fact regarding a Title IX violation in the first place, a ruling
that there was no evidence of intentional discrimination under
Title IX would have been premature. This, however, brings
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
29
Chicago, 441 U.S. 667, 696 (1979) (“The drafters of Title IX
explicitly assumed that it would be interpreted and applied as
Title VI had been during the preceding eight years.”). The
Supreme Court has observed that the primary purposes of
Title IX were (1) “to avoid the use of federal resources to
support discriminatory practices;” and (2) “to provide
individual citizens effective protection against these
practices.” Gebser v. Lago Vista Indep. Sch. Dist., 118 S.Ct.
1989, 1997 (1998); see also Haffer v. Temple Univ., 524 F.
Supp. 531, 533 (E.D. Pa. 1981) (Title IX was intended to
provide “the essential guarantees of equal opportunity in
education for men and women”) (quoting 118 Cong. Rec.
5808 (1972) (remarks of Sen. Birch Bayh)). There is also no
doubt that Congress fully intended Title IX to mandate gender
equity in scholastic athletic programs. See id. at 534-36
(recounting legislative history and subsequent defeat of
various measures that would have limited Title IX’s impact
on athletic programs); see also 34 C.F.R. § 106.41(c)
(recipients of federal funds must generally provide equality of
athletic opportunity to students of both sexes); Yellow Springs
Bd. of Ed. v. Ohio High School Athletic Ass’n, 647 F.2d 651,
660-61 (6th Cir. 1981) (Jones, J., concurring in part and
dissenting in part). Finally, the Supreme Court has recognized
that Title IX was enacted pursuant to Congress’s spending
power. See Davis, 119 S.Ct. at 1669-70; Franklin, 503 U.S.
at 74. By agreeing to accept federal funds, Defendants
essentially contracted with the federal government that they
would not discriminate on the basis of gender in athletics.
See Gebser, 118 S.Ct. at 1997.
An implied cause of action exists under Title IX. See
Davis, 119 S.Ct. at 1669; Gebser, 118 S.Ct. at 1996; Cannon,
441 U.S. at 717. As noted supra, courts are generally free to
“make good on the wrong done” when federal rights have
been infringed, subject to only two constraints. Courts are
limited in granting relief when (1) Congressional intent is to
the contrary, or (2) the purposes of carrying out the statute
would be frustrated. See Gebser, 118 S.Ct. at 1996. It is
well-accepted that Congress did not intend to limit the

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28 Horner, et al. v. Kentucky High
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No. 97-6264
wrongly concluded that Defendants are entitled to summary
judgment on monetary damages. To the contrary, Plaintiffs
must be afforded an opportunity to meet the Davis standard
below.
II.
The starting point for our analysis should be the seminal
decision of Bell v. Hood, 327 U.S. 678 (1946) in which the
Supreme Court stated the oft-repeated principle that
where federally protected rights have been invaded, it has
been the rule from the beginning that courts will be alert
to adjust their remedies so as to grant the necessary relief.
And it is also well settled that where legal rights have
been invaded, and a federal statute provides for a general
right to sue for such invasion, federal courts may use any
available remedy to make good the wrong done.
Id. at 684 (footnotes omitted); see also Franklin v. Gwinnett
Co. Pub. Schs., 503 U.S. 60, 70-71 (1992) (“[A]bsent clear
direction to the contrary by Congress, the federal courts have
the power to award any appropriate relief in a cognizable
cause of action brought pursuant to a federal statute”); Justice
v. Pendleton Place Apartments, 40 F.3d 139, 143 (6th Cir.
1994) (stating that the burden is on the defendant to
demonstrate that Congress did not intend requested relief).
The majority opinion is replete with references to Title IX,
but nowhere does it examine closely the statute’s provisions.
I submit that to engage in a proper analysis, we must look to
the Act itself. The pertinent language of Title IX states: “No
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[.]” 20
U.S.C. § 1681(a). When Title IX was enacted in 1972, it was
patterned after Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d et seq., which banned racial discrimination in
federally funded programs. See Cannon v. University of
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
17
7Title IX provides 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[.]” 20 U.S.C. § 1681(a).
us to Plaintiffs’ contention that our previous decision found
that they had stated a prima facie case under Title IX. That is
not correct, as an examination of our original decision reveals.
Initially, Horner I discussed the analysis to be used in
determining whether Defendants had complied with Title
IX’s equal opportunity mandate.7 The Horner I panel noted
that the regulations implementing the statute’s
nondiscriminatory requirements “do not impose an
independent requirement that an institution always sponsor
separate teams for each sport it sanctions.” Id. at 273 (citing
34 C.F.R. § 106.41(b)). The panel also noted that “the
regulations do require that institutions provide gender-blind
equality of athletic opportunity to its students.” Id. (citing 34
C.F.R. § 106.41(c)). This requires an evaluation of several
factors, including “‘[w]hether the selection of sports and
levels of competition effectively accommodate the interests
and abilities of members of both sexes[.]’” Id. (quoting 34
C.F.R. § 106.41(c)(1)).
In making this assessment, the Horner I panel deferred to
the Department of Health, Education, and Welfare’s Policy
Interpretation of 1979. See id. To satisfy the effective
accommodation requirement of 34 C.F.R. § 106.41(c)(1), “an
institution must effectively accommodate the interests of both
sexes in both the selection of the sports and the levels of
competition, to the extent necessary to provide equal athletic
opportunity.” Id. (citing Policy Interpretation, Section
VII.C.1., 44 Fed. Reg. at 71,417) (emphasis added).
Regarding the interests of the students, Horner I noted that
“the Policy Interpretation instructs that the methods chosen by
the institution must be nondiscriminatory and must not
disadvantage members of an underrepresented sex.” Id.

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18 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
(citing Policy Interpretation, Section VII.C.3., 44 Fed. Reg. at
71,417). The court held:
The district court found that plaintiffs have an
unrestricted opportunity to compete based upon the
interests of the member schools. However, the interests
of the member schools is not necessarily identical with
that of the students, a question on which the record is
completely silent. At best, the record reflects that 17
percent of the member schools were interested in having
fast-pitch softball sanctioned. The interest of female
students at other schools is unknown, because there is no
information regarding whether the member schools
polled their students before responding, or failing to
respond, to the KHSAA’s survey.
Id. (emphasis added).
Regarding the selection of sports, the Horner I panel noted
that Title IX Plaintiffs must establish that:
(1) The opportunities for members of the excluded sex
have historically been limited;
(2) There is sufficient interest and ability among the
members of the excluded sex to sustain a viable team and
a reasonable expectation of intercollegiate competition
for that team; and
(3) Members of the excluded sex do not possess
sufficient skill to be selected for a single integrated team,
or to compete actively on such team if selected.
Id. at 274 (quoting Policy Interpretation, Section VII.C.4.b.,
44 Fed. Reg. at 71,418).
Regarding these factors, the Horner I panel held that there
was record evidence to support the first requirement, but not
the second or third:
With respect to subsection (1), there is evidence in the
record that the opportunities for girls were, and are, more
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
27
standing with the college’s admissions department by
designating the applicant as a “recruit.” Plaintiffs theorized
that college softball coaches were reluctant to allocate
valuable scholarship monies, or otherwise devote recruiting
efforts to Kentucky high school softball prospects, because
Kentucky’s softball players were untested and unproven in the
fast-pitch game. Kentucky’s high school baseball players, of
course, faced no such impediments.
Recently, a district court observed in a similar case that
“[f]or too long, the girls’ softball team has been denied
athletic opportunity equal to the boys' baseball team.”
Daniels v. School Bd. of Brevard Co., Fla., 985 F. Supp.
1458, 1462 (M.D. Fla. 1997). The primary issue in this
appeal is whether the district court correctly concluded that
Plaintiffs produced no evidence of “intentional
discrimination” as a predicate for an award of compensatory
damages. An answer to this question will depend entirely on
the definition of “intentional discrimination” under Title IX.
Plaintiffs urge us to apply a “knowledge” or a “deliberate
indifference” standard for “intentional” violations of Title IX.
Plaintiffs contend that so long as Defendants were aware of
the discriminatory effect of their failure to sanction fast-pitch
softball, but nevertheless failed to modify their bylaws to
comply with Title IX’s mandates, then they “intentionally”
violated Title IX. Defendants counter that “intentional
discrimination” under Title IX requires a finding of
“discriminatory animus” against Plaintiffs’ gender.
The majority suggests in dicta that Defendants are likely
correct in their choice of standard, but holds that Plaintiffs
lose as a matter of law in either case. I disagree with both
conclusions. First, the Supreme Court has determined that a
“deliberate indifference” standard governs whether Title IX
is intentionally violated. See Davis v. Monroe Co. Bd. of Ed.,
119 S.Ct. 1661, 1675 (1999). Further, because the magistrate
court clearly misread the holding of Horner I, and because I
believe the majority essentially rewrites that decision through
its reasoning in this case, the majority has, in my judgment,

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26 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
__________________
DISSENT
__________________
NATHANIEL R. JONES, Circuit Judge, dissenting. The
majority finds it unnecessary to remand this case despite the
magistrate court’s clear error in applying this Court’s holding
in Horner I. The majority also suggests in dicta that we use
a discriminatory animus standard, rather than a deliberate
indifference standard, in assessing the deprivation of
educational opportunities to Kentucky’s female high school
softball players. In my view, Supreme Court precedent
clearly dictates that we use a deliberate indifference standard
in assessing Plaintiffs’ claim. I also believe that Plaintiffs
should be afforded the opportunity to meet this deliberate
indifference standard below--an opportunity of which they
were deprived by the magistrate court’s misreading of this
Court’s decision in Horner I. Accordingly, I respectfully
dissent.
I.
We have already delineated the contours of this lawsuit in
a previous decision. Although defendant Kentucky High
School Athletic Association (“Association”) sanctions boys’
baseball, it did not recognize “fast-pitch” softball--the
practical equivalent of baseball for female athletes--prior to
the filing of this lawsuit. See Horner v. Kentucky High Sch.
Athletic Ass’n, 43 F.3d 265, 269 (6th Cir. 1994). The essence
of Plaintiffs’ complaint was that because of Defendants’
failure to recognize fast-pitch competition in Kentucky high
schools, Kentucky’s female high school softball players were
at a disadvantage in competing for the collegiate benefits and
opportunities enjoyed by Kentucky’s male high school
baseball players. For example, a significant number of
colleges offer financial assistance in the form of athletic
scholarships for softball players. See id. Moreover, it seems
a given that many college coaches can improve an applicant’s
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
19
limited than those for boys. With respect to subsection
(2), the level of interest of all high school girls in fast-
pitch softball is unknown. With respect to subsection (3),
the record reflects only that girls are not prohibited from
playing on the boys’ baseball teams. The record does not
disclose whether and to what extent girls actually play.
Id. at 274 (emphasis added). Thus, contrary to Plaintiffs’
assertions on appeal, this court did not hold in Horner I that
Plaintiffs had met their initial burden.
The panel also set forth the factors in the Policy
Interpretation to assess an institution’s effective
accommodation of the students’ interest in the selection of the
levels of competition:
(1) Whether the intercollegiate level participation
opportunities for males and female students are provided
in numbers substantially proportionate to their respective
enrollments; or
(2) Where the numbers of one sex have been and are
underrepresented among intercollegiate athletes, whether
the institution can show a history and continuing practice
of program expansion which is demonstrably responsive
to the developing interest and abilities of the members of
that sex;
(3) Where the members of one sex are underrepresented
among intercollegiate athletes, and the institution cannot
show a continuing practice of program expansion such as
that cited above, whether it can be demonstrated that the
interests and abilities of the members of that sex have
been fully and effectively accommodated by the present
program.
Id. (quoting Policy Interpretation, Section VII.C.5.a, 44 Fed.
Reg. at 71,418).
Regarding these factors, the original panel noted that:

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20 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
The plaintiffs bear the burden of proof on subsection
(1), that of showing statistical disparity.[FN8] Roberts,
998 F.2d at 828; Cohen, 991 F.2d at 901. Substantial
proportionality provides a safe harbor for recipients of
federal funds. . . . If the plaintiffs prove disparity, then
the institution must show that it satisfies subsection (2).
If it fails here, the plaintiffs may prevail by sustaining
their burden of proof under subsection (3) and
demonstrating an unmet interest on the part of the
underrepresented sex. Roberts, 998 F.2d at 830-31;
Cohen, 991 F.2d at 901. Subsection (3) “‘sets a high
standard: it demands not merely some accommodation,
but full and effective accommodation. If there is
sufficient interest and ability among members of the
statistically underrepresented gender, not slaked by
existing programs, an institution necessarily fails this
prong of the test.’” Roberts, 998 F.2d at 831-32 (quoting
Cohen, 991 F.2d at 898).
FN8. Although the record is silent on this point, the
court was informed at oral argument that 33,891
boys (65 percent) participate in sanctioned sports in
Kentucky, while only 18,860 girls (34.8) percent
participate.
Id. at 275 (emphasis added). We therefore concluded that:
It is evident that genuine issues of material fact abound
in this case, and preclude any determination that
defendants have complied with Title IX’s equal
opportunity mandate. We therefore reverse the district
court’s entry of summary judgment on plaintiffs’ Title IX
claims.
Id. Again, the Horner I panel did not hold that Plaintiffs had
met their burden under Rule 56 of the Federal Rules of Civil
Procedure. In fact, we specifically noted that the record was
silent on statistical disparity. The only proof Plaintiffs offered
on remand was that of statistical disparity, in support of their
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
25
and it is not properly before this Court. See USA Petroleum
Co. v. Atlantic Richfield. 13 F.3d 1276, 1284 (9th Cir. 1994).
In short, Plaintiffs have not shown that they are prevailing
parties because they did not obtain an enforceable judgment,
an injunction, a declaratory judgment, or a consent decree
altering the legal relationship between them and Defendants.
Further, based on the record, Plaintiffs have not demonstrated
that their lawsuit was an important and necessary factor in
changing the law.
III. CONCLUSION
Accordingly, the judgment of the district court is
AFFIRMED.

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24 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
the denial of a motion for attorneys’ fees for an abuse of
discretion. See Jones v. Continental Corp., 789 F.2d 1225,
1229 (6th Cir. 1986).
To recover attorneys’ fees under 42 U.S.C. § 1988, a party
must be a prevailing party. To be a prevailing party, a party
must receive at least some relief on the merits of his claim
such as a judgment, an injunction, or a consent decree. See
Hewitt v. Helms, 482 U.S. 755, 760-61 (1987).
Plaintiffs claim that Defendants changed their policies and
practices because of their lawsuit. The District Court,
however, found no evidence for this claim. The record
reflects that Defendants changed their policies only after the
Kentucky General Assembly amended Ky. Rev. Stat.
§ 156.070, directing Defendants to promulgate regulations to
provide fast-pitch softball. Plaintiffs offered no record
evidence that their lawsuit caused the Kentucky General
Assembly to amend Ky. Rev. Stat. § 156.070. The district
court’s finding that Plaintiffs were not prevailing parties is,
therefore, not clearly erroneous.
Nevertheless, a plaintiff who is not a prevailing party under
§ 1988, may also recover attorneys' fees if the lawsuit was the
primary “catalyst” for causing a defendant to change its
conduct favorably toward the plaintiff. See Payne, 88 F.3d at
397. The catalyst theory applies a two-part test. First, the
plaintiff's lawsuit must be a necessary and important factor in
achieving the relief sought. Second, the plaintiff must prove
that the changed conduct was required because of a violation
of the law. See id. at 397-98.
Plaintiffs have not demonstrated that their lawsuit was a
necessary and important factor in changing the twenty-five
percent rule. Plaintiffs offer an affidavit from a member of
the Kentucky General Assembly stating that Plaintiffs’
counsel advised her on amending Ky. Rev. Stat. § 156.070.
However, Plaintiffs did not enter this affidavit into the record
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
21
statements at oral argument. Plaintiffs offered no proof on
remand that their interests were not being met, despite the
policy allowing them to play on boys’ fast-pitch softball
teams. As the dissent in Horner I observed: “Title IX, when
read with the implementing regulation and the policy
interpretation, places the burden of proving statistical
disparity and unmet interest squarely on the shoulders of the
plaintiffs.” Id. at 277 (Batchelder, J., dissenting) (citing
Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 829
n.5 (10th Cir. 1993); Cohen v. Brown Univ., 991 F.2d 888,
901-01 (1st Cir. 1993)).
In sum, the Horner I panel did not hold that Plaintiffs made
out a prima facie case of a Title IX violation, but merely held
that Plaintiffs had established the first requirement of their
prima facie case. Notably, the Horner I panel specifically
advised Plaintiffs of the proof necessary to prevail on their
Title IX claim, and granted a remand for further development
of the record. Notwithstanding, upon renewed motions for
summary judgment by Defendants, other than proof of
statistical disparity, Plaintiffs still failed to offer any
additional evidence that Title IX’s equal opportunity mandate
had been violated, let alone intentionally violated. Absent a
predicate violation, it is axiomatic that there can be no
intentional violation of Title IX. Thus, in the language of the
dissent, there can be no “actual notice” and “deliberate
indifference” to Plaintiffs’ unmet interest. We therefore
affirm the district court’s grant of summary judgment,
although on slightly different grounds.
Nevertheless, even if we assumed that Plaintiffs had
established their prima facie case, we would still hold that
they failed to establish an intentional violation. Certainly, on
this record, there is no evidence of discriminatory animus.
See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
269-70 (1993) (defining discriminatory animus towards
women in an action under 42 U.S.C. § 1885(3) as having “a
purpose that focuses upon women by reason of their sex . . .
directed specifically at a women as a class”); Feeney, 442

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22 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
No. 97-6264
8As we noted in the equal protection context in Horner I:
Determining whether invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.
The impact of the official action – whether it “bears more
heavily on one race than another,” – may provide an important
starting point. Sometimes a clear pattern, unexplainable on
grounds other than race, emerges from the effect of the state
action even though the governing legislation appears neutral on
its fact. The evidentiary inquiry is then relatively easy. But such
cases are rare.
Horner I, 43 F.3d at 276 (quoting Village of Arlington Heights
Metropolitan Hous. Dev.Corp., 429 U.S. 252, 266 (1977)).
U.S. at 279 (stating in the equal protection context that
“‘discriminatory purpose’ . . . implies more than intent as
volition or intent as awareness of consequences”). Plaintiffs
offered no evidence of discriminatory intent.8 Nor is there any
proof under the dissent’s proposed standard. Plaintiffs have
simply not established that Defendants had actual knowledge
of the discriminatory effect of their facially neutral rule, yet
failed to remedy the violation. In any event, Plaintiffs’ and
the dissent’s position is really a “constructive” notice
argument under the guise of the deliberate indifference test:
Because there was a boys’ fast-pitch softball team and not a
girls’ fast-pitch softball team, Defendants must have known
that they were treating girls differently than boys; Defendants,
as federal funding recipients, are charged with notice of the
Title IX law, which prohibits gender discrimination;
Defendants were therefore in knowing violation of Title IX.
This reasoning is flawed because it reads Title IX as
requiring perfect parity. However, as just discussed, all the
statute and implementing regulations require is equality of
athletic opportunity. The statute itself does not require gender
balance. See 20 U.S.C.A. §1681(b)(West 1990) (providing
that “[n]othing contained in subsection (a) of this section shall
be interpreted to require any educational institution to grant
preferential or disparate treatment to the members of one sex
No. 97-6264 Horner, et al. v. Kentucky High
Sch. Athletic Ass’n, et al.
23
on account of an imbalance which may exist with respect to
the total number or percentage of persons of that sex
participating in or receiving the benefits of federally
supported program or activity, in comparison with the total
number or percentage of persons of that sex in any
community, State, section, or other area”); Roberts, 998 F.2d
at 829 n.5. Further, in certain instances, separate teams for
males and females are allowed. See 34 C.F.R. § 106.41(b)
(1998) (permitting separate sports teams for males and
females where selection for the team is based on competitive
skill or is a contact sport). As we pointed out in Horner I, the
regulations themselves do not impose an independent
requirement that an institution always sponsor separate teams
for all sanctioned sports. See Horner I, 43 F.3d at 273 (citing
34 C.F.R. § 106.41(b)). Thus, it would be impossible for
Defendants to be on notice that they were in violation of Title
IX simply because they sponsored only boys’ fast-pitch
softball. Finally, it is undisputed that Defendants permit
female athletes to try out for traditional male sports, including
contact sports. Absent any evidence that this opportunity did
not adequately meet girls’ needs and abilities, there can be no
finding that Defendants knowingly violated Plaintiffs’ Title
IX rights.
3. Gender Classification
For the first time on appeal, Plaintiffs argue that Defendants
violated Title IX because the KHSAA classifies its sports by
gender. For the reasons stated, classification by gender is not
a per se violation of Title IX. In any event, the claim is
forfeited.
B. Attorneys' Fees
Plaintiffs also claim that they are prevailing parties for
purposes of awarding attorneys’ fees. This Court reviews the
factual determination that a party is a prevailing party for
clear error. See Payne v. Board of Educ., Cleveland City
Schools, 88 F.3d 392, 397 (6th Cir. 1996). This Court reviews

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