NO. 16-4505
In the
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

ELIZABETH FRYBERGER,
Plaintiff-Appellee,
v.
THE UNIVERSITY OF ARKANSAS
and
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS,
Defendants-Appellants.
On Appeal from the United States District Court
For the Western District of Arkansas
No. 5:16-CV-5224-PKH
AMICI CURIAE BRIEF OF EQUAL RIGHTS ADVOCATES ET AL.,
In Support of Appellee and Affirmance

Rebecca Peterson-Fisher, Esq.
Equal Rights Advocates
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: (415) 575-2386
Facsimile: (415) 621-6744
Email: rpetersonfisher@equalrights.org

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 TABLE OF CONTENTS
STATEMENT REGARDING SEPARATE BRIEFING, AUTHORSHIP AND
MONETARY CONTRIBUTIONS............................................................................1
CORPORATE DISCLOSURE STATEMENT .........................................................1
STATEMENT OF INTEREST OF AMICI ...............................................................2
STATEMENT OF THE ISSUE .................................................................................4
HISTORY OF THE CIVIL RIGHTS REMEDIES EQUALIZATION ACT ...........8
ARGUMENT ...........................................................................................................10
I. Legal Standard for Waiver of Sovereign Immunity From Monetary
Liability…………………………………………………………………………10
II. Appellants’ Argument is Contrary to Every Circuit Court Decision
Interpreting CRREA .............................................................................................12
III. The Plain Language of CRREA Unequivocally Requires a Waiver of
State Sovereign Immunity From Damages..................................................................... 15
IV. Appellants’ Interpretation Is Not Plausible Because it Would Render 42
U.S.C. 2000d-7(a)(2) Superfluous ........................................................................17
V. Sossamon Did Not Change the Applicable Standard And Does Not Compel a
Contrary Result .....................................................................................................19

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 VI. Title IX Authorizes Damages Against Public and Private Entities Other than
States; Therefore CRREA Makes Damages Available Against States ................20
VII. A Ruling for Appellants Would Undermine Title IX’s Purpose and
Congress’s Intent in Passing CRREA...................................................................23
A.

Damages are Necessary to Make Victims of Sex Discrimination in

Educational Institutions Whole.........................................................................24
B.

A Ruling for Appellants Will Disadvantage Students Who Attend State

Schools at the College and K-12 Levels ...........................................................25
C.

Without the Risk of Exposure, States Schools Will Deprioritize

Addressing Sex Discrimination, Increasing Risk for Students ........................26
D.

Administrative Enforcement is Insufficient .............................................28

CONCLUSION ........................................................................................................29

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 TABLE OF AUTHORITIES
CASES
Alden v. Maine, 527 U.S. 706 (1999)……………………………………………..11
A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 242 (3d Cir. 2003) ......................8, 13
Alexander v. Sandoval, 532 U.S. 275, 280 (2001) ....................................... 7, 13, 20
Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) .................... 8, 9, 11, 12
Barbour v. Wash. Metro Area Transit Auth., 374 F.3d 1161(D.C. Cir. 2004)
................................................................................................... …….13, 14, 21, 22
Bd. of Educ. of Prince George's Cty. v. Prince George's Cty. Educators' Ass'n,
Inc., 522 A.2d 931 (1987) (Maryland). ................................................................26
Beasley v. Ala. State Univ., 3 F. Supp. 2d 130 (M.D. Ala. 1998) ...........................13
Bowen v. Massachusetts, 487 U.S. 879 (1988)........................................................16
Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979) ............................................2, 23
Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541 (7th Cir. 2001) ..... 13, 14
Clark v. Cal. Dep’t of Corrs., 123 F.3d 1267 (9th Cir. 1997) .................................13
Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997).........................................11
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 632 (1999) ........................ 24, 27
Dinkins v. Corr. Med. Servs., 743 F.3d 633, 635 (8th Cir. 2014) ...........................13
Doe v. Forest Hills Sch. Dist., No. 1:13-CV-428, 2015 WL 9906260 (W.D. Mich.
Mar. 31, 2015).......................................................................................................24
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 Doe v. Nebraska, 345 F.3d 593 (8th Cir. 2003).......................................................13
Doe v. Stanford Univ., No. 3:16-CV-06973 (N.D. Cal., filed Dec. 5, 2016) ..........24
Dugger v. Stephen F. Austin State Univ., No. 2:15-CV-1509-WCB, 2017 U.S. Dist.
LEXIS 15956 (E.D. Tex. Feb. 6, 2017) ................................................................21
Edelman v. Jordan, 415 U.S. 651, 667-678 (1974). ..................................... 6, 17, 18
Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992) ............................... passim
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) .......................... 11, 27
Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312 (8th Cir. 2009) ............16
Hadley v. N. Ark. Cmty. Tech. Coll., 76 F.3d 1437 (8th Cir. 1996) ........................25
Hardt v. Reliance Std. Life Ins. Co., 560 U.S. 242 (2010) ......................................15
Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015)……………………………………24
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) ................................7, 21
Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000).................................... 11, 13
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)....................................................22
Lane v. Pena, 518 U.S. 187 (1996) ..........................................................................19
Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999) ........................ 13, 17
MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491 (3d Cir. 2001)......................10
Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) .....................................................16
Morissette v. United States, 342 U.S. 246 (1952) ...................................................15
Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003) ...............................13
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 Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626 (6th Cir. 2001) ........................13
Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) ...............................13
Pederson v. La. State Univ., 213 F.3d 858 (5th Cir. 2000) ........................ 13, 14, 16
Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002)..............................................13
Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) .................................................13
Sossamon v. Texas, 563 U.S. 277 (2011)......................................................... passim
Seminole Tribe v. Florida, 517 U.S. 44 (1996) .......................................................10
Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007) ......................24
United States v. Nordic Vill. Inc., 503 U.S. 30 (1992) ..................................... 10, 12
Ventura v. Kyle, 825 F.3d 876 (8th Cir. 2016) ........................................................16
Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 824 (8th Cir. 2010) .........6, 17
Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232 (2d Cir.
2006) (New York) .................................................................................................25
STATUTES
20 U.S.C. § 1681 et seq............................................................................................20
20 U.S.C. § 1682 ......................................................................................................28
42 U.S.C § 2000cc-5 ................................................................................................19
42 U.S.C § 2000d-7…………………………………………………………..passim
42 U.S.C. § 2000cc-2 ...............................................................................................19
42 U.S.C. § 1988(b) .................................................................................................22
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 42 U.S.C. § 2000d-7......................................................................................... passim
OTHER AUTHORITIES
132 Cong. Rec. S. 15100 (Oct. 3, 1986) ....................................................................9
PRESCA AHN, ARRIVAL: WOMEN AT YALE (2010). ..................................................26
Dana Bolger, Gender Violence Costs: Schools' Financial Obligations Under Title
IX, 125 YALE L.J. 2106 (2016). ..................................................................... 24, 25
Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge,
Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual
Violence, 43 LOY. U. CHI. L.J. 205, 241 (2011) ...................................................28
Bonnie S. Fisher et al., The Sexual Victimization of College Women at 10, U.S.
Department of Justice (2000), available at
https://www.ncjrs.gov/pdffiles1/nij/182369.pdf.....................................................3
CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT STUDY: FINAL
REPORT (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf. ..............3
Lexie Kuznick & Megan Ryan, Changing Social Norms? Title IX and Legal
Activism Comments from the Spring 2007 Harvard Journal of Law & Gender
Conference Introduction, 31 HARV. J. L. & GENDER 367 (2008). ........................27
Catherine A. McKinnon, In Their Hands: Restoring Institutional Liability for
Sexual Harassment in Education, 125 YALE L.J. 2038 (2016)…………………3, 25

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 Libby Nelson, There’s a nuclear option on campus sexual assault – and it will
never be used, VOX (Nov. 26, 2014),
http://www.vox.com/2014/9/19/6434763/sexual-assault-title-ix-campus-collegeseducation-department-fines ..................................................................................28
Alyssa Peterson & Olivia Ortiz, A Better Balance: Providing Survivors of Sexual
Violence with "Effective Protection" Against Sex Discrimination Through Title
IX Complaints, 125 YALE L.J. 2132 (2016)..........................................................28
BARBARA MILLER SOLOMON, IN THE COMPANY OF EDUCATED WOMEN 105 (1985);
Building on the Success of 35 Years of Title IX: Hearing Before the Subcomm. on
Higher Education, Lifelong Learning, and Competitiveness, 110th Cong. 2 (June
19, 2007) ...............................................................................................................27
PAULA HAWKINS, REHABILITATION ACT AMENDMENTS OF 1986, S. REP. No. 99388, at 28 (1986). ................................................................................... 5, 9, 23, 26
STAFF OF U.S. SENATE SUBCOMM. ON FIN.
& CONTRACTING OVERSIGHT, SEXUAL VIOLENCE ON CAMPUS: HOW TOO MANY
INSTITUTIONS OF HIGHER EDUCATION ARE FAILING TO PROTECT STUDENTS
(2014), http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf. .......27
T. Jesse Wilde, Gender Equity in Athletics: Coming of Age in the 90's, 4 MARQ.
SPORTS L.J. 217 (1994). ........................................................................................26

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 TREATISES
§ 2944 Availability of Injunctive Relief—Adequacy of the Legal Remedy, 11A
Fed. Prac. & Proc. Civ. § 2944 (3d ed.)................................................................16
Remedy, Black’s Law Dictionary (10th ed. 2014) ...............................................6, 15

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 STATEMENT REGARDING SEPARATE BRIEFING, AUTHORSHIP AND
MONETARY CONTRIBUTIONS
Amici Curiae certify that no party or party’s counsel authored this brief in
whole or in part, and no party or person contributed money that was intended to
fund the preparation or submission of this brief.
This separate amici brief is necessary. No other brief of which we are aware
makes the arguments that “remedies at law” must be interpreted as a term of art or
that Appellants’ argument renders 42 U.S.C. § 2000d-7(a)(2) superfluous. No
other brief of which we are aware informs the Court of the history of the Civil
Rights Remedies Equalization Act or the potential impact of a ruling in
Appellants’ favor.
Amici Curiae support the arguments set forth in Appellee’s brief. This
amici brief sets forth additional or alternative reasons why the District Court’s
ruling denying Appellants’ Motion to Dismiss should be affirmed.
CORPORATE DISCLOSURE STATEMENT
Amici Curiae certify that they have no parent corporations, and no publicly
held company owns 10% or more of their stock.

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 STATEMENT OF INTEREST OF AMICI
Amici are organizations and individuals from throughout the United States
dedicated to improving the lives of women and girls and to ending sex
discrimination, including sexual harassment and sexual violence, in our nation’s
schools. Amici are authorized by Federal Rule of Appellate Procedure 29(a)(2) to
file this brief because all parties have consented to its filing.
Amici have special expertise regarding the impact of sexual violence on
student victims, the range of institutional responses to reports of discrimination in
schools across the country, and the legal obligations of educational institutions
under Title IX. Amici have an interest in ensuring that all students have effective
protection from unlawful sex discrimination, including the ability to seek money
damages. A ruling in Appellants’ favor would strip millions of students of state
universities and K-12 schools of the ability to meaningfully enforce their Title IX
rights, undermining Title IX’s twin purposes: “to avoid the use of federal resources
to support discriminatory practices [and to] provide individual citizens effective
protection against those practices.” Cannon v. Univ. of Chi., 441 U.S. 677, 704
(1979).
Amici also have an interest in ensuring that the policies and practices of
universities effectively address the nationwide epidemic of sexual harassment and
sexual assault in higher education. At least one in five young women will be
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 subjected to an attempted or completed rape during her college education.1 On
large state university campuses, this translates to hundreds of attempted or
completed rapes every year. 2 Sexual harassment is similarly widespread.3 The
risk of money damages has incentivized state institutions of higher education to
reform their policies and practices to better serve victims of sexual harassment and
violence. A ruling for Appellants would remove this critical incentive, leading
state universities to deprioritize preventing and addressing sexual harassment and
violence.
Amici supply this brief to aid the Court in evaluating whether Title IX
conditions the receipt of federal funding on States’ waiver of immunity from
monetary liability. Individual statements of interest of amici curiae are in Exhibit
1 to this brief.

1

CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT STUDY: FINAL
REPORT (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf.
2
BONNIE S. FISHER ET AL., THE SEXUAL VICTIMIZATION OF COLLEGE WOMEN 10
(2000), https://www.ncjrs.gov/pdffiles1/nij/182369.pdf.
3
MCKINNON, supra note 9 at 2052, citing studies, including meta-analysis of sixtytwo studies that found that thirty-three percent of medical students were sexually
harassed.
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 STATEMENT OF THE ISSUE
Does Title IX, as amended by the Civil Rights Remedies Equalization Act,
unequivocally require States to waive sovereign immunity from monetary liability
as a condition of receiving federal funding?
INTRODUCTION AND SUMMARY OF ARGUMENT
The University of Arkansas and its Board of Trustees (“Appellants”) seek
to radically transform the enforcement of Title IX, our nation’s principal law
prohibiting sex discrimination in federally-funded educational institutions, by
asking this Court to become the first to hold that monetary damages are not
available in Title IX lawsuits against state educational institutions. No precedent
supports this proposition. It also contradicts the plain language and legislative
history of the Civil Rights Remedies Equalization Act (“CRREA”), which
amended Title IX and other federal antidiscrimination statutes to unequivocally
condition federal funding of educational institutions on a complete waiver of
States’ sovereign immunity.
CRREA provides, “[a] State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit in Federal court” for
violations of the Rehabilitation Act, Title IX, or other federal antidiscrimination
statutes. 42 U.S.C. § 2000d-7(a)(1). It further states that in such suits, “remedies
(including remedies both at law and in equity) are available for such a violation to
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 the same extent as such remedies are available for such a violation in the suit
against any public or private entity other than a State.” 42 U.S.C. § 2000d-7(a)(2).
Congress enacted CRREA to ensure that victims of discrimination by state entities
would have the same remedies available to them as victims of discrimination by
private entities. PAULA HAWKINS, REHABILITATION ACT AMENDMENTS OF 1986, S.
REP. No. 99-388, at 28 (1986).
The Supreme Court held in Franklin v. Gwinnett County Public Schools that
money damages are available in Title IX actions, finding that equitable relief is
insufficient to provide individual citizens with effective remedies against sex
discrimination in educational settings. Franklin v. Gwinnett Cty. Pub. Sch., 503
U.S. 60, 76 (1992). The Court read CRREA as “a validation of Cannon’s holding”
that Title IX implies a private right of action against federal funding recipients, and
reasoned that CRREA’s reference to “remedies both at law and in equity” includes
money damages. Id. at 72-73. Since Franklin makes clear that money damages
are available in Title IX actions against non-State entities, money damages are also
available against State entities pursuant to the plain language of CRREA’s
“equalization” provision, 42 U.S.C. § 2000d-7(a)(2).
Appellants concede that CRREA requires waiver of sovereign immunity
from the jurisdiction of the federal courts, and that money damages are available in
Title IX lawsuits against public or private defendants other than States. Appellants
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 nevertheless argue that CRREA may be interpreted to authorize only “a limited set
of equitable remedies (i.e., injunctive relief) but not monetary damages” against
States. Opening Brief of Appellants (“AOB”) at 20. This interpretation is
implausible because it ignores the plain language of the statute and renders the
“equalization” provision—subsection (a)(2)—superfluous. See Westerfeld v.
Indep. Processing, LLC, 621 F.3d 819, 824 (8th Cir. 2010) (courts should “avoid
interpreting a statute in a manner that renders any section of the statute superfluous
or fails to give effect to all of the words used by Congress.”).
The Court should reject Appellants’ attempt to inject ambiguity into a
clearly drafted statute. The plain language of CRREA authorizes “remedies at
law” in Title IX lawsuits where such remedies are available against private or
public entities other than States. “Remedies at law” unequivocally include
monetary damages. Remedy, Black’s Law Dictionary (10th ed. 2014). Appellants’
interpretation of CRREA would render the words “remedies at law” superfluous.
Moreover, it would render all of subsection (a)(2) superfluous because subsection
(a)(1)’s requirement that States waive Eleventh Amendment immunity is sufficient
to authorize non-monetary equitable relief. See Edelman v. Jordan, 415 U.S. 651,
667-678 (1974).
Appellants base their flawed argument on Sossamon v. Texas, 563 U.S. 277
(2011), which they misread to establish a new, “ultra-clear statement rule”
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 requiring waiver statutes to include the word “damages.” See AOB at 15. But
Sossamon has no bearing on this case. The Supreme Court in Sossamon did not
interpret CRREA’s remedies provision, nor did it establish an “ultra-clear
statement rule” requiring Congress to use the word “damages” to express its intent
that States waive their immunity from monetary liability.
Appellants also argue that CRREA is ambiguous because Title IX, as
originally enacted, does not explicitly address remedies. This argument is also
meritless. CRREA necessarily incorporates the judicial construction of Title IX,
because Title IX’s private right of action is implied. See Franklin, 503 U.S. at 7173. Therefore, as the Supreme Court reasoned in Franklin, CRREA “cannot be
read except as a validation of Cannon’s holding” that Title IX includes an implied
private right of action. Franklin, 503 U.S. at 72; Alexander v. Sandoval, 532 U.S.
275, 280 (2001). Appellants were on notice of the Supreme Court’s holding in
Franklin that damages are available in Title IX actions when they elected to accept
federal funds. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005)
(finding funding recipients are on notice of previous case law interpreting Title
IX). Thus, under CRREA, Appellants waived their sovereign immunity from
monetary liability by accepting those funds. Accordingly, the Court should affirm
the District Court’s denial of Appellants’ Motion to Dismiss.

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 HISTORY OF THE CIVIL RIGHTS REMEDIES EQUALIZATION ACT
Congress enacted CRREA in response to the Supreme Court’s holding in
Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). A.W. v. Jersey City
Pub. Schs., 341 F.3d 234, 242 (3d Cir. 2003). In Atascadero, the Court held that
although the Rehabilitation Act expressly provided a private right of action to any
person aggrieved by the act or failure to act of “any recipient of Federal
assistance,” it did not abrogate States’ sovereign immunity. Atascadero, 473 U.S.
at 245-46. The Court’s holding was based upon the principle that Congressional
abrogation of state sovereign immunity pursuant to its powers under section 5 of
the 14th Amendment must be “unequivocal.” Id. at 244-46. Alternatively, the
Court found that if the Rehabilitation Act were construed as Spending Clause
legislation, it lacked a clear declaration of intent to condition participation in
federal programs on States’ consent to waive constitutional immunity. Id. at 24647. The plaintiff, who alleged that a state hospital discriminated against him by
denying him employment because of his diabetes mellitus and partial blindness,
was left without a remedy. Had he been discriminated against by a private
hospital, he would have been able to proceed with his action and seek money
damages.
Congress disagreed with the Court’s holding in Atascadero. In response,
Senator Alan Cranston, the principal author of the Rehabilitation Act, introduced
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 the Civil Rights Remedies Equalization Act, which was incorporated into the 1986
Amendments to the Rehabilitation Act. The statute provides:
(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 section 504 of the Rehabilitation Act of 1973 [29 USCS §
794], title IX of the Education Amendments of 1972 [20 USCS §§ 1681 et
seq.], the Age Discrimination Act of 1975 [42 USCS §§ 6101 et seq.].
title VI of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], or
the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute referred to in paragraph
(1), remedies (including remedies both at law and in equity) are available
for such a violation to the same extent as such remedies are available for
such a violation in the suit against any public or private entity other than
a State.
42 U.S.C. § 2000d-7(a) (emphasis added). As Senator Cranston explained:
[A]s a result of this legislation, if a Federal suit for damages were generally
available to enforce a civil rights law against a recipient of Federal funds… a
Federal suit for damages would be available against a State or a State
agency. In this way, this legislation would eliminate the court-made barrier
to effectuating congressional intent that the holding in the Atascadero case
so unwisely has raised.
132 Cong. Rec. S. 15100 (Oct. 3, 1986) (statement of Sen. Cranston).
Congress’ stated intent in passing CRREA was “to provide litigants in cases
against States and State agencies the same protection they have in other situations.”
PAULA HAWKINS, REHABILITATION ACT AMENDMENTS OF 1986, S. REP. No. 99388, at 28 (1986). In Congress’ view, CRREA met the requirements set forth in
Atascadero because it “explicitly provide[d] that in a suit against a State for a
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 violation of any of these statutes, remedies, including monetary damages, are
available to the same extent as they would be available for such a violation in a suit
against any public or private entity other than a State.” Id. at 27-28.

ARGUMENT
Congress’ intent to abrogate or require waiver of immunity from monetary
liability must be “unequivocally expressed” in the relevant federal statute.
Sossamon, 563 U.S. at 284. No “magic words” are required —a statute meets this
requirement if it is not susceptible of a plausible interpretation that permits States
to retain their sovereign immunity. E.g., MCI Telecomm. Corp. v. Bell Atl.-Pa.,
271 F.3d 491, 513 (3d Cir. 2001); United States v. Nordic Vill. Inc., 503 U.S. 30,
34 (1992). There is no plausible reading of the plain language of CRREA that
permits States to retain sovereign immunity as a defense to a remedy otherwise
available. Because Title IX authorizes money damages against non-State entities,
Franklin, 503 U.S. at 71-73, CRREA makes money damages available in this
lawsuit against the University of Arkansas. 42 U.S.C. § 2000d-7(a)(2).
I.

Legal Standard for Waiver of Sovereign Immunity From Monetary
Liability

States’ sovereign immunity is not absolute. Seminole Tribe v. Florida, 517 U.S.
44, 54-55 (1996). Although the Eleventh Amendment recognizes that the federal
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 judiciary’s Article III powers do not abrogate State sovereignty,4 Congress is
empowered to abrogate sovereign immunity in legislation to enforce the
Fourteenth Amendment. Atascadero, 473 U.S. at 238. Pursuant to its Spending
Clause power, Congress may also condition federal funding on States’ consent to
waive sovereign immunity. Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir.
2000). Under either constitutional source of authority, Congress’ intent to abrogate
or require waiver of sovereign immunity must be “unequivocally expressed” in the
text of the relevant statute.” Sossamon, 563 U.S. at 284.
Amici agree with Appellee that Title IX, as amended by CRREA, is a valid
exercise of Congress’ power under either section 5 of the Fourteenth Amendment
or the Spending Clause. U.S. Const. art I, § 8, cl. 1. See Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 287 (1998) (analyzing Title IX as Spending Clause
legislation); Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997) (holding that
Title IX as amended by CRREA validly abrogated state sovereign immunity
pursuant to Congress’ section 5 power under the Fourteenth Amendment). This
brief analyzes Title IX as Spending Clause legislation, and CRREA as a clear
declaration that a waiver of sovereign immunity is required as a condition of
federal funding. However, the same reasoning would apply if the Court were to
4

There is only one sovereign immunity, not, as the Amici States argue, “Eleventh
Amendment Immunity” and “the States’ separate immunity.” Brief of the States of
Arkansas, Arizona, Kansas, Louisiana, Nebraska, South Carolina, and Texas as
Amici Curiae at 14; Alden v. Maine, 527 U.S. 706, 712 (1999).
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 analyze Title IX as Fourteenth Amendment enforcement legislation, and CRREA
as an unequivocal expression of Congressional intent to abrogate sovereign
immunity from monetary liability. See Atascadero, 473 U.S. at 239.
An express requirement that States waive their Eleventh Amendment immunity
as a condition of receipt of federal funding does not in itself authorize money
damages, because immunity from monetary liability is a component of sovereign
immunity not addressed by the Eleventh Amendment. See Nordic Vill., Inc., 503
U.S. at 34. Congress’ intent to require waiver of immunity from monetary liability
must likewise be “unequivocally expressed” in the relevant statute. Id. A statute
meets this requirement when it is not susceptible of a plausible interpretation that
would leave sovereign immunity from monetary liability intact. Id. Whether
Congress has required waiver of immunity from monetary liability is therefore a
question of statutory interpretation. Id.
II.

Appellants’ Argument is Contrary to Every Circuit Court Decision
Interpreting CRREA

The statute this Court must interpret to resolve whether Appellants waived
sovereign immunity from monetary liability when they accepted federal funding is
CRREA, 42 U.S.C. § 2000d-7(a). Every Circuit that has analyzed CRREA has
concluded that it unambiguously conditions the receipt of federal funding on
States’ waiver of immunity from suit in federal court for violations of the statutes

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 specified therein, including Title IX. Barbour v. Wash. Metro Area Transit Auth.,
374 F.3d 1161, 1166 (D.C. Cir. 2004) (Rehabilitation Act); Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 129-30 (1st Cir. 2003) (Rehabilitation Act); A.W. v.
Jersey City Pub. Schs., 341 F.3d 234, 243-244 (3d Cir. 2003) (Rehabilitation Act);
Robinson v. Kansas, 295 F.3d 1183, 1190 (10th Cir. 2002) (Rehabilitation Act);
Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626, 628 (6th Cir. 2001)
(Rehabilitation Act); Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541,
555 (7th Cir. 2001) (Title IX); Jim C., 235 F.3d at 1082 (en banc) (Rehabilitation
Act); Pederson v. La. State Univ., 213 F.3d 858, 875-76 (5th Cir. 2000) (Title IX);
Sandoval v. Hagan, 197 F.3d 484, 493-94 (11th Cir. 1999), rev’d on other grounds
sub nom. Alexander, 532 U.S. 275 (Title VI); Litman v. George Mason Univ., 186
F.3d 544, 553-54 (4th Cir. 1999) (Title IX); Clark v. Cal. Dep’t of Corrs., 123 F.3d
1267, 1271 (9th Cir. 1997) (Rehabilitation Act); Beasley v. Ala. State Univ., 3 F.
Supp. 2d 1304, 1315-16 (M.D. Ala. 1998) (Title IX); see also Pace v. Bogalusa
City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (Rehabilitation Act). This precedent
includes an en banc decision of this Circuit that remains good law: Jim C., 235
F.3d at1082, subsequently followed in Dinkins v. Corr. Med. Servs., 743 F.3d 633,
635 (8th Cir. 2014) (Rehabilitation Act) and Doe v. Nebraska, 345 F.3d 593, 599600 (8th Cir. 2003) (Rehabilitation Act).

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 Without exception, courts have assumed that money damages may be
awarded in such suits. For example, in Barbour v. Washington Metro Area Transit
Auth., 374 F.3d 1161 (D.C. Cir. 2004), the court observed that “[i]n the CRREA,
the legislature made clear that it did not want any federal funds to be used to
facilitate disability discrimination, and that exposing recipient entities to the threat
of federal damage actions was an effective deterrent.” Barbour, 374 F.3d at 1168.
Other courts have permitted damages lawsuits to proceed over sovereign immunity
objections, implicitly finding that CRREA requires waiver of sovereign immunity
from monetary liability as well as federal jurisdiction. In Pederson v. Louisiana
State University, a Title IX lawsuit, the Fifth Circuit relied on CRREA to reject
Louisiana State University’s sovereign immunity defense, noting that the plaintiffs
would be entitled to compensatory damages if they proved intentional
discrimination. Pederson, 213 F.3d at 875-76. Similarly, in Cherry v. University of
Wisconsin System Board of Regents, the Seventh Circuit rejected the defendant
university’s sovereign immunity defense where the plaintiff sought compensatory
damages for alleged salary discrimination. Cherry, 265 F.3d at 545. In light of the
plain language of CRREA and the Supreme Court’s holding in Franklin, it is
unsurprising that courts have not deemed it necessary to analyze States’ waiver of
immunity from monetary liability in depth.

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 III.

The Plain Language of CRREA Unequivocally Requires a Waiver of
State Sovereign Immunity From Damages

Statutory interpretation begins with the text of the statute. E.g., Hardt v.
Reliance Std. Life Ins. Co., 560 U.S. 242, 251 (2010). The text of CRREA
unambiguously requires States to waive immunity from both federal court
jurisdiction and monetary liability in Title IX lawsuits. CRREA states that both
remedies “at law” and “in equity” are available against States “to the same extent
as [they] are available against any public or private entity other than a State.” 42
U.S.C § 2000d-7(a)(2). “Remedies at law” is a term of art and must be interpreted
according to its widely accepted definition in our legal tradition. E.g., Morissette
v. United States, 342 U.S. 246, 263 (1952) (“[W]here Congress borrows terms of
art in which are accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas that were attached to
each borrowed word[.]”). Over centuries of Anglo-American jurisprudence,
“remedies at law” has unquestionably meant money damages. Black’s Law
Dictionary defines the phrase “adequate remedy at law” as “[a] legal remedy (such
as an award of damages) that provides sufficient relief to the petitioning party,
thus preventing the party from obtaining equitable relief,” and notes that this
definition dates back to the Eighteenth Century. Remedy, Black’s Law Dictionary
(10th ed. 2014) (emphasis added). By contrast, it defines an “equitable remedy” as

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 “a remedy, usu[ally] a nonmonetary one such as an injunction or specific
performance, obtained when available legal remedies, usu[ally] monetary
damages, cannot adequately redress the injury.” Id. (emphasis added).5 Countless
courts, including the United States Supreme Court and the Eighth Circuit, have
affirmed that money damages are the standard remedy at law. E.g., Mertens v.
Hewitt Assocs., 508 U.S. 248, 255 (1993) (contrasting legal relief with equitable
relief) (citing cases); Bowen v. Massachusetts, 487 U.S. 879, 893-94 (1988);
Ventura v. Kyle, 825 F.3d 876, 887 (8th Cir. 2016) (citing cases); Gen. Motors
Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009).
Appellants offer no plausible alternative reading of the phrase “remedies…at
law.” Instead, they ignore the statute’s text and point out that Congress did not use
the word “damages” in CRREA. AOB at 19-21. This argument is meritless. The
fact that Congress used the term of art “remedies at law” rather than the word
“damages” does not render the meaning of CRREA ambiguous. See Pederson,
213 F.3d at 876 (“although [the statute] does not use the words ‘waiver’ or
‘condition,’ [it] unambiguously provides that a State by agreeing to receive federal
5

Wright and Miller’s Federal Practice likewise indicates that a plaintiff has an
adequate remedy at law available when the plaintiff can “bring a legal action and
seek damages that will provide full compensation, or if plaintiff can assert the
claim as a defense in some other proceeding.” § 2944 Availability of Injunctive
Relief—Adequacy of the Legal Remedy, 11A Fed. Prac. & Proc. Civ. § 2944 (3d
ed.) (emphasis added); see also id. at § 2944 n.13 (collecting cases in which
damages were held to be an adequate remedy at law).
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 educational funds under Title IX has waived sovereign immunity.”); Litman, 186
F.3d at 554 (rejecting defendant university’s assertion that statutes “must say
something like ‘as a condition of receiving federal funds under this Act, the States
agree to waive their Eleventh Amendment immunity,’” and holding CRREA
unambiguously requires waiver of immunity).
IV.

Appellants’ Interpretation Is Not Plausible Because it Would Render 42
U.S.C. 2000d-7(a)(2) Superfluous
A court must “avoid interpreting a statute in a manner that renders any

section of the statute superfluous or fails to give effect to all of the words used by
Congress.” Westerfeld, 621 F.3d at 824. Appellants’ proposed interpretation
would fail to give effect to the words “remedies at law,” and the Court may reject it
for that reason alone. See id. Furthermore, if Congress intended to authorize only
non-monetary equitable relief against States, it need not have enacted subsection
(a)(2) at all. A waiver of Eleventh Amendment immunity suffices to make nonmonetary equitable relief available against States. See Edelman, 415 U.S. at 667678. Yet Congress included a separate subsection referring to remedies both “at
law” and “in equity.” 42 U.S.C. § 2000d-7(a)(2). The only plausible construction
of subsection (a)(2) is as a requirement that States waive sovereign immunity from
monetary liability.

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 No case has held that Congress must require something more than a waiver
of “Eleventh Amendment” immunity to subject States to suit for non-monetary
equitable relief. Explicit statutory authorization is required only for money
damages and equitable remedies that would affect the State treasuries in a manner
analogous to money damages awards. Edelman, 415 U.S. at 667-678. Therefore,
subsection (a)(1)’s requirement that States waive “Eleventh Amendment”
immunity as a condition of federal funding already authorizes non-monetary
equitable relief against Appellants. Appellants’ reading of subsection (a)(2) as
merely an authorization of the same non-monetary equitable relief would render
that subsection superfluous.
The only plausible interpretation of subsection (a)(2) of CRREA is as a
requirement that States waive immunity from monetary liability, whether achieved
through legal or equitable relief. As explained in section III, remedies “at law” are
money damages. The remedies “in equity” referenced in subsection (a)(2) can
only be monetary remedies because non-monetary remedies are separately
authorized by subsection (a)(1), and the only equitable remedies that require an
explicit waiver of immunity are those which affect States’ treasury in the same
manner as damages awards. E.g., Edelman, 415 U.S. at 667-78.

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 V.

Sossamon Did Not Change the Applicable Standard And Does Not
Compel a Contrary Result
The Sossamon Court did not, as Appellants contend, announce a new “ultra-

clear statement rule.” Sossamon merely applied the principle that “a State’s
consent to suit must be ‘unequivocally expressed’ in the relevant statute’s text” to
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). 563 U.S.
at 278. Sossamon does not control this case because it did not construe CRREA,
other than to reject the plaintiff’s argument that RLUIPA falls into CRREA’s
residual clause. Id. at 291-92. Furthermore, RLUIPA is distinguishable from
CRREA. The text of RLUIPA interpreted in Sossamon provides that “[a] person
may assert a violation of this Act as a claim or defense in a judicial proceeding and
obtain appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). This
provision does not distinguish between legal and equitable remedies. Moreover,
unlike CRREA, RLUIPA does not explicitly equalize the remedies available
against States and other defendants. 42 U.S.C § 2000cc-5(4) (defining
“government” in 42 U.S.C. § 2000cc-2(a)). In short, Sossamon is inapposite. 6

6

Lane v. Pena is similarly inapposite. Lane analyzed whether the Rehabilitation
Act waived the federal government’s sovereign immunity from damages awards
against executive agencies. Lane v. Pena¸518 U.S. 187, 189 (1996). Because the
Rehabilitation Act included executive agencies in its prohibition on discrimination
but not in its remedies provision, the Court held that it lacked a clear declaration of
Congressional intent to abrogate the Federal Government’s sovereign immunity to
money damages in suits against executive agencies. Id. at 192-93. The court did
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 VI.

Title IX Authorizes Damages Against Public and Private Entities Other
than States; Therefore CRREA Makes Damages Available Against
States

Appellants further argue that it remains ambiguous whether CRREA requires
States to waive immunity from monetary liability because Title IX’s text in 20
U.S.C. § 1681 et seq. does not explicitly address remedies. AOB at 26-30. But if
CRREA referred only to the statutory text of Title IX, devoid of judicial
construction, it would not include Title IX at all. Title IX’s original text does not
expressly provide for a private right of action. CRREA’s explicit requirement that
States waive Eleventh Amendment immunity would be meaningless in the absence
of an implied private right of action under Title IX. Therefore, as the Supreme
Court reasoned in Franklin, CRREA “cannot be read except as a validation of
Cannon’s holding” that Title IX contains an implied private right of action.
Franklin, 503 U.S. at 72; accord Alexander, 532 U.S. at 280.
CRREA’s equalization provision would be equally meaningless if it did not
refer to judicial construction of the remedies available under Title IX. Indeed, the
text of that provision requires courts to consider the remedies available to non-

not interpret CRREA as applied to States, it merely rejected the plaintiff’s
argument that CRREA’s reference to remedies available against public entities in
its equalization provision constituted the clear declaration of intent required to
waive sovereign immunity to money damages across all categories of Federal
defendants in light of the Rehabilitation Act’s limited remedies provision. Id. at
198-200.
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 State entities under Title IX, which, like Title IX’s implied private right of action,
have been established through judicial construction. See 42 U.S.C. § 2000d7(a)(2); Franklin, 503 U.S. at 65-66. The Supreme Court’s interpretation of
CRREA in Franklin is supports this conclusion. The Court reasoned that Congress
enacted CRREA with awareness of its decision in Cannon, and of the traditional
presumption that all appropriate relief, including monetary relief, is available
where a private cause of action exists to enforce a federal right. Franklin, 503 U.S.
at 72-73. Therefore, the Court concluded that CRREA’s reference to
“remedies…at law and in equity” necessarily includes money damages, even
though Title IX as originally enacted does not explicitly address remedies. Id.
Furthermore, States are on notice of case law interpreting statutory
conditions attached to federal funds. Jackson v. Birmingham Bd. of Educ., 544
U.S. 167, 183 (2005) (holding previous Supreme Court decisions regarding the
scope of Title IX put defendant on notice that retaliation was prohibited, despite
the absence of a case explicitly analyzing that issue); Dugger v. Stephen F. Austin
State Univ., No. 2:15-CV-1509-WCB, 2017 U.S. Dist. LEXIS 15956 at *24 (E.D.
Tex. Feb. 6, 2017) (relying on Rehabilitation Act case law to interpret CRREA as
requiring waiver of sovereign immunity from monetary liability); see Barbour, 374
F.3d at 1167 (State defendant was on notice the Americans with Disabilities Act’s
(ADA) abrogation was invalid when it accepted funding in 1998 because the
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 predicate decisions that led to the Supreme Court’s 2001 holding that the ADA
exceeded Congress’ abrogation authority had already been issued).
Finally, Appellants attach unwarranted significance to the fact that Franklin
had not yet been decided when CRREA was passed. AOB at 25. CRREA’s text is
not time-bound. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 76 (2000) (“The
clear statement inquiry focuses on what Congress did enact, not when it did so.”).
Furthermore, the Supreme Court in Franklin found that Congress assumed
damages were available under Title IX when it enacted CRREA. Franklin, 503
U.S. at 72-73. 7 The dispositive question in this lawsuit is whether Appellants
were on notice that damages were available against non-State defendants when it
chose to accept federal funding in 2014, the year Elizabeth Fryberger’s cause of
action arose. See Barbour, 374 F.3d at 1167-68 (finding defendant’s notice when
CRREA was passed in 1986 irrelevant to its knowledge when it decided to accept
federal funds in 1998). More than twenty years after Franklin, Appellants’ claim
that they lacked such notice is untenable.

7

Furthermore, Congress had already made attorneys’ fees available to prevailing
parties in Title IX lawsuits in the Civil Rights Attorneys’ Fees Award Act of 1976.
42 U.S.C. § 1988(b).
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 VII.

A Ruling for Appellants Would Undermine Title IX’s Purpose and
Congress’s Intent in Passing CRREA
Amici are participating in this case because a ruling in Appellants’ favor

would strip millions of students of public universities and K-12 schools of the
ability to meaningfully enforce their Title IX rights. In Amici’s extensive
experience, equitable relief is an inadequate remedy for several reasons. As the
Supreme Court acknowledged in Franklin, student victims of sexual harassment
and sexual violence may drop out of school, transfer, or graduate before a court
rules on their claims. Franklin, 503 U.S. at 75-76. Moreover, equitable relief does
not compensate victims for the significant cost of mental health treatment or other
expenses incurred as a result of discrimination, nor does it compensate them for
emotional distress.
A holding that educational institutions that are “arms of the state” are
immune from damages in Title IX actions will undermine Title IX’s purpose “to
provide individual citizens effective protection against those practices.” Cannon,
441 U.S. at 704. Under Appellants’ interpretation of CRREA, Title IX provides
only some students effective protection from discrimination, leaving others with no
remedy. A ruling for Appellant would create precisely the result Congress sought
to prevent by passing CRREA: an enforcement regime in which victims of
discrimination by private institutions have greater protection than victims of

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 discrimination by State institutions. S. REP. No. 99-388, at 28. Students who
cannot afford to attend private colleges will be primarily impacted, and in states in
which K-12 schools are “arms of the state,” children too will lose the ability to
enforce their Title IX rights in court.
Finally, by making state universities immune from monetary liability, a
decision in Appellants’ favor would remove a critical incentive to comply with
Title IX. Administrative enforcement cannot substitute for the force of litigation,
and will not have the same deterrent effect on schools. Without the risk of being
liable for damages, state universities will deprioritize addressing sexual harassment
and violence on campus, and reforms that have opened the doors of opportunity for
women will be jeopardized.
A. Damages are Necessary to Make Victims of Sex Discrimination in
Educational Institutions Whole
Equitable relief alone is inadequate to remedy the effects of sexual
harassment and assault in educational settings. As firms and legal non-profits that
represent young women facing discrimination, including sexual violence, 8 Amici
know the importance of monetary damages for students working to rebuild their
8

Amici have represented student plaintiffs in numerous Title IX suits, including
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 632 (1999); Hill v. Cundiff, 797
F.3d 948 (11th Cir. 2015); Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1172
(10th Cir. 2007); Doe v. Forest Hills Sch. Dist., No. 1:13-CV-428, 2015 WL
9906260 (W.D. Mich. Mar. 31, 2015); Doe v. Stanford Univ., No. 3:16-CV-06973
(N.D. Cal., filed Dec. 5, 2016).
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 lives. Sex discrimination can exact a heavy financial cost on victims. Damages in
Title IX cases may include expensive medical and psychological care. 9 Students
who suffer from post-traumatic stress disorder or depression may be unable to
handle a full courseload, and incur additional tuition and housing expenses to
complete their degrees over a longer time period.10 Others are forced to drop out
of school, decreasing their long-term earning potential. 11 In Amici’s extensive
experience, damages are often crucial for students to pursue an education in the
wake of sexual violence and other forms of discrimination. Without this essential
remedy, Title IX will fail to achieve its purpose: ensuring gender never stands as
an obstacle to a student’s opportunity to learn.
B. A Ruling for Appellants Will Disadvantage Students Who Attend
State Schools at the College and K-12 Levels
The negative effects of a ruling in Appellants’ favor will be widespread and
will disproportionately impact students who cannot afford private school. State
universities and colleges are almost always considered arms of the state, see, e.g.,
Hadley v. N. Ark. Cmty. Tech. Coll., 76 F.3d 1437, 1438 (8th Cir. 1996). Some
states also consider community colleges to be arms of the state, id., and still others
9

Dana Bolger, Gender Violence Costs: Schools' Financial Obligations Under Title
IX, 125 YALE L.J. 2106, 2115-17 (2016).
10
Id.; see also Catherine A. McKinnon, In Their Hands: Restoring Institutional
Liability for Sexual Harassment in Education, 125 YALE L.J. 2038, 2057-58
(2016).
11
Bolger, supra note 9, at 2115-19.
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 consider local boards of education to be arms of the state. See, e.g., Woods v.
Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 240 (2d Cir. 2006)
(New York); Bd. of Educ. of Prince George's Cty. v. Prince George's Cty.
Educators' Ass'n, Inc., 522 A.2d 931, 936 n. 3 (1987) (Maryland). A ruling in
Appellants’ favor will negatively affect millions of students of public state schools
across the country. Students who are victims of sex discrimination in public state
schools will be unable to effectively vindicate their rights in court, while their
counterparts in private school will retain the ability to sue for damages.
C. Without the Risk of Exposure, States Schools Will Deprioritize
Addressing Sex Discrimination, Increasing Risk for Students
Without the risk of monetary damages, state-run schools will have little
incentive to comply with Title IX, and the important reforms accomplished
through Title IX enforcement will be jeopardized. Before federal law prohibited
sex discrimination in education, women students were treated as “second-class
citizens[.]” 12 Title IX ushered in a new era in women and girls’ educations. For
example, the percentage of women in sports has more than doubled,13 and the

12

BARBARA MILLER SOLOMON, IN THE COMPANY OF EDUCATED WOMEN 105
(1985); PRESCA AHN, ARRIVAL: WOMEN AT YALE (2010).
13
T. Jesse Wilde, Gender Equity in Athletics: Coming of Age in the 90's, 4 MARQ.
SPORTS L.J. 217, 229 (1994).
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 percentage of women earning undergraduate engineering degrees has increased
more than twentyfold. 14
Of particular import for this case, Title IX transformed the way schools
address sexual harassment by requiring them to remedy the hostile environment
harassment creates. See Davis v. Monroe Cty. Bd. of Ed., 526 U.S. 629 (1999);
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998).15 Although
sexual harassment and violence remain widespread, universities across the country
have established new sexual harassment grievance procedures to comply with Title
IX’s regulations.16 Without the threat of financial exposure, students may lose
these hard-won gains. Amici fear state institutions will shift their resources
elsewhere, causing a return to an era when sexual violence on campus was
routinely swept under the rug.

14

Lexie Kuznick & Megan Ryan, Changing Social Norms? Title IX and Legal
Activism Comments from the Spring 2007 Harvard Journal of Law & Gender
Conference Introduction, 31 HARV. J. L. & GENDER 367, 371 (2008).
15
See also Building on the Success of 35 Years of Title IX: Hearing Before the
Subcomm. on Higher Education, Lifelong Learning, and Competitiveness, 110th
Cong. 2 (June 19, 2007) (statement of Lisa M. Maatz, Director of Public Policy
and Government Relations, American Association of University Women) (noting
the importance of Title IX to efforts to address sexual harassment in schools, as
well as remaining challenges).
16
STAFF OF U.S. SENATE SUBCOMM. ON FIN.
& CONTRACTING OVERSIGHT, SEXUAL VIOLENCE ON CAMPUS: HOW TOO MANY
INSTITUTIONS OF HIGHER EDUCATION ARE FAILING TO PROTECT STUDENTS 6-8
(2014), http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf.
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 D. Administrative Enforcement is Insufficient
Administrative enforcement of Title IX cannot substitute for the force of
damages litigation. The Department of Education Office for Civil Rights (“OCR”)
is the primary federal agency charged with enforcing Title IX. 20 U.S.C. § 1682.
OCR, however, has never subjected a school to monetary sanctions for Title IX
violations, likely because of the limited tools at its disposal: the agency can only
withhold all of a schools’ federal funding or impose no penalty, with no middle
ground available.17 Even during periods when OCR aggressively enforces Title
IX, it prioritizes structural change over individual remedies.18 Thus, without the
possibility of money damages, student victims of sex discrimination will lack any
effective means to redress violations of their civil right to an education free from
sex discrimination.

17

Libby Nelson, There’s a nuclear option on campus sexual assault – and it will
never be used, VOX (Nov. 26, 2014),
http://www.vox.com/2014/9/19/6434763/sexual-assault-title-ix-campus-collegeseducation-department-fines; Nancy Chi Cantalupo, Burying Our Heads in the
Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of
Campus Peer Sexual Violence, 43 LOY. U. CHI. L.J. 205, 241 (2011).
18
Alyssa Peterson & Olivia Ortiz, A Better Balance: Providing Survivors of Sexual
Violence with "Effective Protection" Against Sex Discrimination Through Title IX
Complaints, 125 YALE L.J. 2132, 2136 (2016).
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 CONCLUSION
For the reasons stated above, the Court should affirm the District Court’s
ruling denying Appellants’ Motion to Dismiss.

Dated: March 8, 2017

Respectfully submitted,
By:

/s/ Rebecca Peterson-Fisher
Rebecca Peterson-Fisher, Esq.
Equal Rights Advocates
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: (415) 575-2386
Facsimile: (415) 621-6744
Email: rpetersonfisher@equalrights.org.

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 EXHIBIT 1

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STATEMENTS OF INTEREST OF AMICI
Equal Rights Advocates
Equal Rights Advocates (ERA) is a national women’s rights organization whose
mission is to protect and secure equal rights and economic opportunities for
women and girls through litigation and advocacy. In service of its mission, ERA
litigates class actions and other high-impact cases on issues of gender
discrimination in employment and education. In particular, ERA has a long history
of pursuing equality and justice for women and girls under Title IX, including
work in Doe v. Petaluma City School District, the nation’s first federal court case
to recognize that peer (student-to-student) sexual harassment is actionable under
Title IX, and, more recently, Mansourian v. UC Regents and Brust v. UC Regents.
ERA currently represents the plaintiff in Doe v. Stanford Univ., No. 3:16-CV06973 (N.D. Cal., filed Dec. 5, 2016). In ERA’s experience, sexual harassment
and sexual violence in educational institutions exact a high financial toll on
victims. Moreover, without fear of exposure to damages, educational institutions
will not be incentivized to ensure they comply with Title IX.
American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nationwide, nonprofit,
nonpartisan organization with approximately one million members dedicated to
defending the principles embodied in the Constitution and our nation’s civil rights
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 laws. The ACLU has appeared in this court and courts around the nation in
numerous cases involving the application and scope of the Constitution and civil
rights laws, both as direct counsel and as amicus curiae. The ACLU frequently
litigates cases concerning Title IX and gender equity in education.
The National Women’s Law Center
The National Women’s Law Center is a nonprofit legal organization that has
worked for more than 40 years to protect and promote equality and opportunity for
women and families. Since 1972, the Center has fought to secure equal opportunity
in education for girls and women through full enforcement of Title IX, the U.S.
Constitution, and other laws prohibiting sex discrimination. Of particular relevance
to this case, the Center has represented student plaintiffs in numerous cases
involving sexual harassment in schools before the Supreme Court and lower
courts. The National Women's Law Center advocates for robust school
accountability under the civil rights laws to ensure all students can learn free from
sex discrimination.
Public Justice, P.C.
Public Justice is a national public interest law firm that pursues high impact
lawsuits to combat social and economic injustice, protect the Earth’s sustainability,
and challenge predatory corporate conduct and government abuses. Public Justice
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 has long worked to secure educational equity for students through lawsuits
designed to enforce their rights under the Constitution and anti-discrimination
laws, including Title IX. For example, Public Justice has represented students
seeking gender equity in interscholastic and intercollegiate sports, as well as
students who were denied equal educational opportunities because of gender-based
harassment or sexual violence suffered at school. In Public Justice’s experience,
damages actions under Title IX are critically important to protecting students
against discriminatory practices that deprive them of equal access to education.
Public Justice joins this brief out of concern that denying students the ability to file
damages actions against state educational institutions for Title IX violations would
deprive them of what is often the only meaningful remedy for the sex
discrimination they have suffered.
Legal Momentum
Legal Momentum advances the rights of women and girls by using the power of
the law and creating innovative public policy. It is the nation’s oldest legal
advocacy organization devoted to advancing women’s rights. Legal Momentum
was instrumental in drafting the 1994 Violence Against Women Act (VAWA) and
each of its subsequent reauthorizations, which expanded the law to protect sexual
assault victims, as well as LGBTQ, tribal, and immigrant communities. Legal
Momentum is a leader in responding to campus sexual assault. Legal Momentum
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 represents and advocates on behalf of student victims of sexual assault and
provides extensive technical assistance to victims, student organizations, attorneys,
and schools on their rights and obligations under Title IX. Legal Momentum, then
known as NOW Legal Defense, pioneered the implementation of Title IX with
PEER, its nationwide Project on Equal Education Rights, from 1974-1992, and has
appeared as amicus in numerous cases concerning the right to be free from sexual
harassment and sex discrimination in education, including Davis v. Monroe County
Board of Education, 526 U.S. 648 (1999) and Franklin v. Gwinnett County Public
Schools, 503 U.S. 60 (1992).
Equity Legal
Equity Legal and Kristen Galles have litigated Title IX cases nationwide on behalf
of students, faculty, and coaches for more than 20 years. Many of these cases have
led to the awarding of money damages against state universities and K-12 public
school districts that are arms of the state. In addition to litigation, Galles has
researched, written, advocates, and worked for policy changes and enforcement of
Title IX and other civil rights laws to ensure that women and girls receive equal
opportunity in education in an environment that is free from sex discrimination and
sexual harassment.

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 Women’s Sports Foundation
The Women’s Sports Foundation (WSF) is a nonprofit educational organization
dedicated to expanding opportunities for girls and women to participate in sports
and fitness and to creating an educated public that supports gender equity in sports.
The WSF distributes grants and scholarships to female athletes and girls’ sports
programs, answers hundreds of inquiries per year concerning Title IX and other
women’s sports related questions, and administers award programs to increase
public awareness about the achievements of girls and women in sports.
Girls Inc.
Girls Inc. inspires all girls to be strong, smart, and bold. Girls Inc. is a nonprofit,
nonpartisan organization with over 80 local affiliates that provide primarily afterschool and summer programming to approximately 150,000 girls ages 5-18 in 30
U.S. states and in Canada. Our comprehensive approach to whole girl development
equips girls to navigate gender, economic, and social barriers and grow up healthy,
educated, and independent. These positive outcomes are achieved through three
core elements: people - trained staff and volunteers who build lasting, mentoring
relationships; environment - girls-only, physically and emotionally safe, where
there is a sisterhood of support, high expectations, and mutual respect;
and programming - research-based, hands-on and minds-on, age-appropriate,
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 meeting the needs of today’s girls. Informed by girls and their families, we also
advocate for legislation, policies, and practices to increase opportunities for all
girls. Girls Inc. is a longtime supporter of Title IX and believes that the
availability of damages for civil rights violations is critical to ensuring compliance
and changing harmful discriminatory practices.
Women’s Law Project
The Women’s Law Project (WLP) is a non-profit public interest law firm with
offices in Philadelphia and Pittsburgh, Pennsylvania. Founded in 1974, WLP
works across a spectrum of inter-related issues that affect women’s legal status,
health, and economic security, forging progress through strategic high-impact
litigation, policy advocacy and community education. Throughout its history, WLP
has worked to eliminate sex discrimination by bringing and supporting litigation
challenging discriminatory practices prohibited by federal civil rights laws. WLP’s
Title IX litigation includes (1) Foltz et al. v. Delaware State University, No. 10149 (Dist. Ct. Del. 2010), in which WLP was co-counsel for a class of plaintiffs
challenging the university’s failure to provide female students with equal
participation opportunities in athletics; (2) Choike v. Slippery Rock University,
2006 U.S. Dist. LEXIS 49886 (W.D. Pa.), in which WLP was co-counsel for a
class of female students challenging inequitable participation opportunities and
treatment of female athletes at their university; and (3) Brady v. Sacred Heart
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 University, No. 303-CV-514 (D. Conn. 2003), in which WLP was co-counsel for a
plaintiff challenging her university’s decision to remove her from her sports team,
deny her scholarship, and instruct her to leave school due to her pregnancy. WLP
also files amicus briefs in a range of civil rights cases, including cases involving
Title IX, such as Hill v. Madison County School Board, et al., No 14-12481
(11th Cir. 2014), which supported a student’s claim that her school acted with
deliberate indifference to her sexual assault.
National Organization for Women
The National Organization for Women (NOW) Foundation is a 501 (c)(3) entity
affiliated with the National Organization for Women, the largest grassroots
feminist activist organization in the United States with chapters in every state and
the District of Columbia. NOW Foundation is committed to advancing equal
education opportunity, among other objectives, and works to assure that women
are treated fairly and equally under the law. NOW Foundation believes that sexual
assault has a disproportionate impact on women and serves to deter and often deny
them equal access to education, as Title IX seeks to protect. A remedy at law
permitting monetary awards for damages against states for Title IX violations is
essential to protecting women's equal rights to education.

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 California Women’s Law Center
The California Women’s Law Center (CWLC) is a non-profit organization that
strives to break down barriers and advance the potential of women and girls
through transformative litigation, policy advocacy and education. CWLC
undertakes a variety of projects in areas impacting women's rights, including
gender discrimination, reproductive justice, women's health, and violence against
women. CWLC closely monitors legislation and federal guidelines regarding
colleges' responses to sexual assault on campus. We provide resources and training
to attorneys and the public regarding state and federal law related to sexual assault
and advocate on behalf of survivors.
The Clearinghouse on Women’s Issues
The Clearinghouse on Women's Issues (CWI) is a501(c)(3) non-profit organization
whose mission is to address economic, health, educational, social, political and
legal issues facing women and girls. CWI addresses concerns of diverse women at
the local, national and international levels by providing public forums and
opportunities for networking that raise awareness and act as a catalyst to move
women and girls towards greater equity. Providing information on Title IX issues
and policies affecting educational institutions has been a major interest of CWI.
Established in 1974 shortly after the passage of Title IX in 1972, CWI
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 has provided a channel for dissemination of information on gender equity in
education. State educational institutions who receive federal funds are responsible
for implementation of Title IX and if found in violation by allowing sex
discrimination in education programs and activities, should be held accountable
through appropriate equitable remedies including monetary damages.
Feminist Majority Foundation
The Feminist Majority Foundation (FMF) is a non-profit organization
dedicated to eliminating sex discrimination and to the promotion of gender equality
and women’s empowerment. FMF programs focus on advancing the legal, social,
economic, education, and political equality of women with men; countering the
backlash to women’s advancement; and recruiting and training young feminists. To
carry out these aims, FMF engages in research and public policy development,
public education programs, grassroots organizing efforts, and leadership training
programs. The FMF Education Equity Program belongs to and works with the
National Coalition for Women and Girls in Education, and has paid special
attention to enhancing the proactive roles of the required Title IX Coordinators at
the state, local and school and college levels. FMF operates the world’s largest
student network which holds annual National Young Feminist Leadership
conferences which address many topics such as ending campus sexual violence.

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 This amicus brief is congruent with FMF’s goals to assure full implementation of
Title IX using both preventive and punitive strategies including financial
remediation by public and private entities. All institutions which receive federal
financial assistance for education programs and activities are responsible for
rigorous implementation of Title IX and should have to pay for allowing sex
discrimination as well as making sure they use appropriate equitable remedies to
stop it.
Atlanta Women for Equality
Atlanta Women for Equality is a 501(c)3 nonprofit organization that provides free
legal representation to women and girls facing sex discrimination in the
educational environment. We focus primarily on individual student cases, public
policy initiatives and educational programs concerning campus sexual misconduct
and Title IX. The majority of our clients are students at post-secondary educational
institutions that are state entities governed by the Board of Regents of the
University System of Georgia.

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 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance with Type-Volume
Limitation, Typeface Requirements, and Type Style
Requirements
1. This brief complies with the type-volume limitations of Fed. R.
App. P. 32(f) and Fed. R. App. P. 29(a)(4) because:
[X] this brief contains 6,456 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because:
[X] this brief has been prepared in a proportionally spaced typeface
using 2010 Microsoft Word in Times New Roman, Size 14 font.
Respectfully submitted,
By:

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s/ Rebecca Peterson-Fisher_____
Rebecca Peterson-Fisher
Equal Rights Advocates
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: 415-575-2386
Email: rpetersonfisher@equalrights.org
Attorney for Amici Curiae

Date Filed: 03/09/2017 Entry ID: 4510544

 CERTIFICATION OF SERVICE AND VIRUS SCAN
I, Rebecca Peterson-Fisher, do hereby certify that on March 8, 2017, I
electronically filed the foregoing with the Clerk of the Court of the United States
Court of Appeals for the Eighth Circuit using the CM/ECF system, which will
distribute the electronic copies to all counsel of record.
I further certify that the foregoing brief has been scanned for viruses and is
virus-free.

By:

s/ Rebecca Peterson-Fisher_____
Rebecca Peterson-Fisher
Equal Rights Advocates
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: 415-575-2386
Email: rpetersonfisher@equalrights.org
Attorney for Amici Curiae

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 United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329

St. Louis, Missouri 63102
VOICE (314) 244-2400
FAX (314) 244-2780
www.ca8.uscourts.gov

Michael E. Gans
Clerk of Court

March 09, 2017

Ms. Rebecca Peterson-Fisher
EQUAL RIGHTS ADVOCATES
1170 Market Street
San Francisco, CA 94102
RE: 16-4505 Elizabeth Fryberger v. University of Arkansas, et al
Dear Counsel:
The amicus curiae brief of the Equal Rights Advocates was received and filed on March
9, 2017. Please complete and file an Appearance form. You can access the Appearance Form at
www.ca8.uscourts.gov/all-forms.
Please note that Federal Rule of Appellate Procedure 29(g) provides that an amicus may
only present oral argument by leave of court. If you wish to present oral argument, you need to
submit a motion. Please note that if permission to present oral argument is granted, the court's
usual practice is that the time granted to the amicus will be deducted from the time allotted to the
party the amicus supports. You may wish to discuss this with the other attorneys before you
submit your motion.
Michael E. Gans
Clerk of Court
YML
Enclosure(s)
cc:

Mr. Mason Boling
Mr. Carmine Joseph Cordi Jr.
Mr. David A. Curran
Mr. Patrick E. Hollingsworth
Mr. Matthew Blayne McCoy
Mr. George McAllaster Rozzell
Mr. Lee P. Rudofsky
District Court/Agency Case Number(s): 5:16-cv-05224-PKH

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