                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 00-2192
                                ___________

Ian Maitland,                          *
                                       *
             Appellee,                 *
                                       *
      v.                               *
                                       *
University of Minnesota; Regents of    *
the University of Minnesota;           *
Wendell R. Anderson; M. Elizabeth      * Appeal from the United States
Craig; Jean B. Keffeler; Elton A.      * District Court for the
Kuderer; H. Bryan Neel, III; Mary J.   * District of Minnesota.
Page; Lawrence Perlman; Thomas R.      *
Reagan; David K. Roe; Darrin M.        *
Rosha; Stanley D. Sahlstrom; Ann J.    *
Wynia; Julie Bleyhl; William E.        *
Hogan, II; Hyon T. Kim; William R.     *
Peterson; Nils Hasselmo, University    *
of Minnesota President,                *
                                       *
             Appellants.               *
                                  ___________

                          Submitted: June 15, 2001
                              Filed: August 15, 2001
                               ___________

Before WOLLMAN, Chief Judge, MAGILL, and BOWMAN, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.
       This case is making its third appearance in this Court, having been twice
dismissed and revived on appeal. In this latest interlocutory appeal, the University of
Minnesota (the "University"), the members of the Board of Regents, and the President
of the University (the "individual defendants"), appeal the District Court's1 denial of the
defendants' motion to dismiss or, in the alternative, for partial summary judgment based
on Eleventh Amendment immunity and absolute legislative immunity. We affirm.

                                            I.

       The origins of this case go back to 1973, when female faculty members brought
a class action suit against the University of Minnesota alleging sexual discrimination
in compensation. In 1980, the University settled with the class by entering into a
consent decree. Rajender v. Univ. of Minn., 563 F. Supp. 401, (D. Minn. 1983)
(Rajender I), rev'd in part and vacated in part, 730 F.2d 1110 (8th Cir. 1984). In 1983,
several female faculty members filed petitions under the consent decree that alleged
continuing discrimination in compensation by the University. The court again certified
the female faculty members as a class and, in 1989, settled the matter with a second
consent decree. In re Rajender Salary Settlement, Civ. No. 3-89-464 (D. Minn.
Oct. 12, 1989) (Rajender II). Rajender II provided for an adjustment whereby $3
million would be distributed to female faculty members in the form of salary increases.



       Ian Maitland, a male professor at the University of Minnesota, sued the
University and other officials in 1993 under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e to 2000e-17 (1994 & Supp. IV 1998), claiming that the Rajender
II salary increases for female faculty members had created a discriminatory pay
structure tilted against himself and other male faculty members. The District Court


      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
                                            -2-
granted summary judgment to the University after concluding that Maitland's claims
were barred by the Civil Rights Act of 1991 and under principles of estoppel. Maitland
v. Univ. of Minn., Civ. No. 3-93-91 (D. Minn. July 12, 1993). We reversed the
District Court on both grounds. Maitland v. Univ. of Minn., 43 F.3d 357 (8th Cir.
1994) (Maitland I).

       On remand, Maitland asserted an additional claim for damages under
section 102(a) of the Civil Rights Act of 1991, 42 U.S.C. § 1981a (1994), and
reasserted a 42 U.S.C. § 1983 claim (which had previously been dismissed) that alleged
the University had violated his equal protection rights. In 1996, the District Court
granted summary judgment to the University, finding that Maitland was ineligible to
recover under his section 102(a) damages claim, that the individual defendants were
entitled to qualified immunity, and that the University and the individual defendants
were entitled to judgment as a matter of law on the remaining claims. Maitland v.
Univ. of Minn., Civ. No. 4-93-25 (D. Minn. Dec. 6, 1996). Again, we reversed. See
Maitland v. Univ. of Minn., 155 F.3d 1013, 1019 (8th Cir. 1998) (Maitland II).2

       On remand, the University filed a motion to dismiss or, in the alternative, for
partial summary judgment on four different grounds. First, the individual defendants
argued that they had absolute legislative immunity when they approved the Rajender II
settlement, thereby barring Maitland's § 1983 claim against them. Second, the
defendants argued that Congress exceeded its constitutional authority under Section 5
of the Fourteenth Amendment when it abrogated the University's Eleventh Amendment
immunity with respect to Title VII sex-discrimination claims brought by men. Third,
the defendants argued that recent changes to Maitland's salary have rendered his back-
pay and injunctive-relief claims moot. Finally, the defendants argued that Maitland


      2
       For a more detailed account of the litigation through Maitland II, see Maitland
v. Univ. of Minn., 43 F.3d 357 (8th Cir. 1994) (Maitland I) and Maitland v. Univ. of
Minn., 155 F.3d 1013 (8th Cir. 1998) (Maitland II).
                                         -3-
failed to join indispensable parties, i.e., members of the Rajender II class from whom
the defendants contended Maitland was seeking divestiture relief. The District Court3
denied the motion on all four grounds. Maitland v. Univ. of Minn., Civ. No. 4-93-25
(D. Minn. Mar. 29, 2000). The defendants bring this interlocutory appeal challenging
the District Court's rulings on the legislative-immunity and Eleventh Amendment issues.

                                           II.

       We have jurisdiction over this interlocutory appeal under the collateral-order
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949);
see, e.g., Powell v. Ridge, 247 F.3d 520, 524 (3d Cir. 2001) ("[O]rders denying
legislative immunity have often been reviewed under the collateral order doctrine."),
petition for cert. filed, 69 U.S.L.W. 3791 (U.S. June 12, 2001) (No. 00-1854); Murphy
v. Ark., 127 F.3d 750, 753-54 (8th Cir. 1997) (noting that an order denying a claim of
Eleventh Amendment immunity is properly appealable as a collateral order). We
review de novo a district court's disposition of a motion to dismiss. Hafley v. Lohman,
90 F.3d 264, 266 (8th Cir. 1996), cert. denied, 519 U.S. 1149 (1997).

                                           A.

       The defendants first argue that the District Court erred by denying the individual
defendants legislative immunity from Maitland's § 1983 claim against them in their
individual capacities. Maitland based his claim upon their approval of the Rajender II
consent decree and the discrimination that Maitland claims he suffered as a result of the
implementation of that decree. The individual defendants contend that they are immune
from suit because the Regents were elected to their position by the Minnesota state



      3
       The case was assigned to Judge Frank for the first time after our remand in
Maitland II.
                                           -4-
legislature and were performing a legislative function when they entered into the
consent decree.4

       We conclude that the District Court properly denied the defendants' legislative-
immunity claim on the basis of our decision in Stanley v. Magrath, 719 F.2d 279 (8th
Cir. 1983). In Stanley, students at the University of Minnesota brought a § 1983 claim
against members of the Board of Regents following the Regents' decision to permit
students to obtain a refund of a compulsory fee used to support the University
newspaper following an outcry over an especially controversial issue of the newspaper.
Students affiliated with the newspaper argued that the Regents' decision to refund
monies based upon the content of the newspaper violated the First Amendment. We
held, inter alia, that members of the Board of Regents were not entitled to legislative
immunity:

      The Regents do not qualify as legislators within the meaning of the
      legislative-immunity doctrine. Although the Regents are given the power
      "to enact laws for the government of the university" they are essentially
      administrators who oversee the operation of a state educational
      institution. . . .

             There are instances in which the members of bodies other than state
      legislatures may have legislative immunity from suit under § 1983. The
      governing body of a state-supported institution of higher learning, we
      think, cannot qualify for such protection.

Id. at 284-85 (citations omitted). The defendants recognize our decision in Stanley, but
argue that the Supreme Court's subsequent decision in Bogan v. Scott-Harris, 523 U.S.
44 (1998), suggests that Stanley was wrongly decided and they urge us to revisit the
issue. We decline to do so.


      4
        The President of the University is elected by the Regents and, in addition to
other responsibilities, serves as President of the Board of Regents.
                                          -5-
       In Bogan, the Supreme Court held that local legislators, like their federal, state
and regional counterparts, were protected by absolute legislative immunity for their
legislative activities. 523 U.S. at 46, 54. The Court went on to find that "[a]bsolute
legislative immunity attaches to all actions taken 'in the sphere of legitimate legislative
activity,'" and that "[w]hether an act is legislative turns on the nature of the act." Id. at
54 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). We find, however, that
Bogan fails to illuminate the issue here and does not require us to rethink our holding
in Stanley. Because Bogan does not undercut Stanley, our well-established rule that
"one panel [of this Court] is not at liberty to overrule a decision of another panel"
governs and we are bound by our holding in Stanley. United States v. Prior, 107 F.3d
654, 660 (8th Cir.), cert. denied, 522 U.S. 824 (1997). Accordingly, the individual
defendants are not immune from Maitland's § 1983 claim under the doctrine of
legislative immunity.

                                             B.

       The defendants next argue that the District Court erred by denying Eleventh
Amendment immunity to the University on Maitland's Title VII claim. Specifically, the
defendants argue that Congress exceeded its constitutional authority under Section 5
of the Fourteenth Amendment when it abrogated the University's Eleventh Amendment
immunity with respect to Title VII sex-discrimination claims brought by men. The
defendants argue that there was no factual basis for Congress to subject the States to
sex-discrimination claims by men, and that Title VII, as applied to men, is not a
carefully delimited, proportional, and congruent remedy for unconstitutional conduct
by the States.

      The defendants first contend that the District Court erred by relying on
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), wherein the Supreme Court rejected an
Eleventh Amendment challenge to a Title VII sex-discrimination claim brought by male
employees. The District Court, relying on Fitzpatrick, held that Maitland's Title VII

                                             -6-
claim was neither barred by the Eleventh Amendment nor beyond Congress's legislative
power under Section 5 of the Fourteenth Amendment. Maitland, Civ. No. 4-93-25 at
8-9. The defendants argue that Fitzpatrick does not control because the question at
issue here—whether Title VII sex-discrimination claims brought by males are beyond
Congress's power under Section 5 of the Fourteenth Amendment—was never directly
before the Court in Fitzpatrick. Rather, the defendants argue, the Court in Fitzpatrick
treated the issue of whether Section 5 of the Fourteenth Amendment could
constitutionally support a Title VII sex-discrimination claim brought by a male
employee as an ancillary antecedent proposition that was assumed, but not decided, by
the Court.

      In Fitzpatrick, current and retired male employees of the State of Connecticut
brought a Title VII claim against the State, arguing that the State's retirement benefit
program discriminated against them because of their sex. The district court held that
the program violated Title VII and granted injunctive relief, but held that retrospective
retirement benefits and attorney fees were prohibited under Edelman v. Jordan, 415
U.S. 651 (1974). The Second Circuit upheld the district court with respect to the
retrospective retirement benefits, but reversed as to attorney fees. The Supreme Court
granted certiorari to resolve "whether, as against the shield of sovereign immunity
afforded the State by the Eleventh Amendment, Congress has the power to authorize
federal courts to enter such a [monetary] award against the State as a means of
enforcing the substantive guarantees of the Fourteenth Amendment." Fitzpatrick, 427
U.S. at 448 (citation omitted). The Court ultimately concluded that the State's Eleventh
Amendment immunity was abrogated by Title VII, which was enacted under Section 5
of the Fourteenth Amendment, and that the male employees were permitted to recover
their retrospective retirement benefits from the State. See id. at 456.

       The defendants rely heavily on footnote eleven of Fitzpatrick, where the Court
states that "[a]part from their claim that the Eleventh Amendment bars enforcement of
the remedy established by Title VII in this case, respondent state officials do not

                                           -7-
contend that the substantive provisions of Title VII as applied here are not a proper
exercise of congressional authority under § 5 of the Fourteenth Amendment." 427 U.S.
at 456 n.11. The defendants urge us to interpret this footnote to mean that the Court
assumed, but did not answer, the issue of whether Congress created Title VII claims
for men consistent with Section 5 of the Fourteenth Amendment. We agree with the
defendants that Fitzpatrick did not squarely decide the issue, but we believe that
Fitzpatrick is highly persuasive authority for the proposition that Title VII sex-
discrimination claims brought in federal court by male employees against a state are not
barred by the Eleventh Amendment. Cf. Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 82 (1998) (permitting male employee to sue employer for discrimination
under Title VII); Newport News Shipbldg. & Dry Dock Co. v. EEOC, 462 U.S. 669,
682 (1983) (finding that, under Title VII, "[m]ale as well as female employees are
protected against discrimination").

      The defendants argue that, because Fitzpatrick is not controlling, Maitland's Title
VII claim is unconstitutional under the more recent test for challenges to legislation
enacted under Section 5 of the Fourteenth Amendment. Specifically, the defendants
contend that Congress failed to identify a history and pattern of unconstitutional
employment discrimination by the State against men when it enacted and amended Title
VII, and that the rights and remedies created by Title VII are not "congruent and
proportional" to that pattern of discrimination. Bd. of Trs. of Univ. of Ala. v. Garrett,
121 S. Ct. 955, 964, 966 (2000); see also City of Boerne v. Flores, 521 U.S. 507, 520
(1997). Accordingly, the defendants argue, Title VII claims brought by men do not
abrogate the State's Eleventh Amendment immunity.

       We recently held in Okruhlik v. United States, Nos. 00-3159, 00-3460, 00-3896,
2001 WL 686995 (8th Cir. June 20, 2001), that Title VII sex-discrimination claims
against state employers are not barred by the Eleventh Amendment. Okruhlik was the
result of a consolidation of three separate interlocutory appeals that raised the same
issue—whether professors and staff at the University of Arkansas may maintain claims

                                           -8-
against University of Arkansas trustees and other state officials for sex and race
discrimination and harassment under Title VII. We held that Congress's enactment of,
and amendments to, Title VII validly abrogated the States' Eleventh Amendment
immunity. Most importantly for our purposes here, we held that in enacting and
amending Title VII, "Congress expressed its unequivocal intent to abrogate immunity
and acted pursuant to its constitutional authority" under Section 5 of the Fourteenth
Amendment. Id. at *7.

       Inasmuch as Title VII does not differentiate between men and women, see 42
U.S.C. § 2000e-2(a) (1994) (prohibiting discrimination "against any individual . . .
because of . . . sex"), we believe our holding in Okruhlik that Title VII was enacted and
amended in accord with the strictures of Section 5 must apply equally to men as it does
to women. We therefore disagree with the defendants' contention that, although Title
VII removes the bar of Eleventh Amendment immunity to federal court sex-
discrimination actions by women, the Constitution requires a parsing of the legislative
findings or review of the "proportionality and congruity" of remedies to determine
whether the Eleventh Amendment bar also has been removed with respect to Title VII
actions by men.5


      5
        The Supreme Court has generally disallowed remedial legislation founded in
Congress's power under Section 5 of the Fourteenth Amendment in instances where
Congress failed to establish and identify the general problem that the legislation was
intended to ameliorate. For example, the Supreme Court held that the Religious
Freedom Restoration Act in City of Boerne v. Flores, 521 U.S. 507, 530-32 (1997),
was an unconstitutional exercise of Congress's power under Section 5 because of the
paucity of evidence suggesting a widespread pattern of religious discrimination and the
disproportionality of the Act to its remedial objective. Likewise, the Supreme Court
in Kimel v. Florida Board of Regents, 528 U.S. 62, 83-86 (2000), found the Age
Discrimination in Employment Act beyond Congress's power under Section 5 because
of a lack of evidence of age discrimination generally and the disproportionality of the
remedies under the Act. Under the defendants' reasoning, if a non-African-American
minority employee brought a race-discrimination claim against his state employer under
                                           -9-
                                           III.

      The rulings of the District Court challenged in this interlocutory appeal are
affirmed and the case is remanded for further proceedings.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




Title VII, and the legislative history of Title VII was devoid of any findings specific to
that employee's minority group, the legislation would not abrogate the state's Eleventh
Amendment immunity and the employee would be without recourse under Title VII.
Cf. McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 278-85 (1976) (holding that
white employees may properly maintain race-discrimination claims under Title VII).
Even putting the rather obvious Equal Protection Clause problems to one side, we do
not think that the defendants' reasoning affords us a proper approach towards
application of the Eleventh Amendment.
                                           -10-
