     Case: 19-30670    Document: 00515412619      Page: 1   Date Filed: 05/12/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    May 12, 2020
                                  No. 19-30670
                                                                    Lyle W. Cayce
                                                                         Clerk
STEPHEN M. GRUVER, individually and on behalf of Maxwell R. Gruver;
RAE ANN GRUVER, individually and on behalf of Maxwell R. Gruver,

              Plaintiffs - Appellees

v.

LOUISIANA BOARD OF SUPERVISORS FOR THE LOUISIANA STATE
UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE,

              Defendant - Appellant



                  Appeal from the United States District Court
                      for the Middle District of Louisiana


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
GREGG COSTA, Circuit Judge:
        Two decades ago we held that state recipients of Title IX funding waive
their    Eleventh     Amendment        immunity   against   suits   alleging   sex
discrimination. Pederson v. La. State Univ., 213 F.3d 858, 876 (5th Cir. 2000).
Louisiana’s flagship university was the defendant in that case, and it is back
to again invoke Eleventh Amendment immunity against a Title IX claim. The
state has not forgotten its loss on this issue but argues that an intervening
Supreme Court decision allows us to reexamine our precedent. We disagree.
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                                             I.
       This case arises from the tragic death of Maxwell Gruver after a
fraternity hazing event at Louisiana State University. His parents sued LSU
for violations of Title IX and state law. In support of the federal claim, they
allege that LSU discriminated against male students by policing hazing in
fraternities more leniently than hazing in sororities.
       LSU moved to dismiss the Gruvers’ complaint for lack of jurisdiction and
for failure to state a claim. It argued that Eleventh Amendment immunity
deprived the district court of jurisdiction. The district court denied the motion
as to the Title IX claim.         Although it dismissed the state-law claims on
Eleventh Amendment grounds, it held that LSU had waived immunity to Title
IX suits under Fifth Circuit precedent. The court then ruled that the Gruvers
had sufficiently alleged a Title IX violation.
       LSU cannot bring an interlocutory appeal of the ruling that the Gruvers
stated a claim, but it can appeal the denial of Eleventh Amendment immunity
before the case goes further, P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144–45 (1993). It has done so.
                                             II.
       The Eleventh Amendment bars suits that individuals file against states
in federal court. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). As
with just about every rule, there are exceptions. One is that a state may waive
its immunity, and Congress can induce a state to do so by making waiver a
condition of accepting federal funds. Pace v. Bogalusa City Sch. Bd., 403 F.3d
272, 277–79 (5th Cir. 2005) (en banc). 1


       1Congress can also unilaterally abrogate a state’s Eleventh Amendment immunity by
enacting legislation under Section Five of the Fourteenth Amendment. Pace, 403 F.3d at
277. The Gruvers contend that abrogation allows their lawsuit too, but we need not reach
the question because of our precedent permitting it to proceed on waiver grounds. Id. at 287;
Pederson, 213 F.3d at 875 n.15.
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       We held twenty years ago that this type of Spending Clause waiver exists
for Title IX. Pederson, 213 F.3d at 876. Pederson concluded that the following
statute—enacted in 1986 as the Civil Rights Remedies Equalization Act—
validly conditioned Title IX funding on a recipient’s waiver of Eleventh
Amendment immunity:
              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, title IX of the Education Amendments of 1972, the Age
       Discrimination Act of 1975, title VI of the Civil Rights Act of 1964,
       or the provisions of any other Federal statute prohibiting
       discrimination by recipients of Federal financial assistance.

42 U.S.C. § 2000d–7(a)(1); see also Pederson, 213 F.3d at 876. In exchange for
receiving federal funds, LSU subjected itself to the Pederson suit challenging
its failure to field women’s soccer and softball teams. 213 F.3d at 876.
       We have since reaffirmed that holding in cases dealing with other
antidiscrimination statutes mentioned in section 2000d–7. See Miller v. Tex.
Tech Univ. Health Scis. Ctr., 421 F.3d 342, 347–52 (5th Cir. 2005) (en banc)
(Rehabilitation Act); Pace, 403 F.3d at 280–87 (same). We are not alone. Every
circuit to consider the question—and all but one regional circuit has—agrees
that section 2000d–7 validly conditions federal funds on a recipient’s waiver of
its Eleventh Amendment immunity. 2




       2 See Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1170 (D.C. Cir.
2004); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 129 (1st Cir. 2003); Koslow v.
Pennsylvania, 302 F.3d 161, 176 (3d Cir. 2002); Robinson v. Kansas, 295 F.3d 1183, 1190
(10th Cir. 2002), abrogated on other grounds by Muscogee (Creek) Nation v. Pruitt, 669 F.3d
1159 (10th Cir. 2012); Nihiser v. Ohio E.P.A., 269 F.3d 626, 628 (6th Cir. 2001); Cherry v.
Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541, 555 (7th Cir. 2001); Jim C. v. United States,
235 F.3d 1079, 1082 (8th Cir. 2000) (en banc); Sandoval v. Hagan, 197 F.3d 484, 500 (11th
Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001); Litman v. George Mason Univ., 186
F.3d 544, 555 (4th Cir. 1999); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997).
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                                       No. 19-30670
       LSU acknowledges that precedent stands in the way of its immunity
claim. Indeed, it sought initial hearing en banc because, under the rule of
orderliness, only our full court can “overturn another panel’s decision.” See
Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam) (citation
omitted). That request had no takers.
       LSU nevertheless presses on. It invokes another way to avoid one of our
precedents: an intervening ruling from the Supreme Court. The bar it faces is
high. For a Supreme Court decision to constitute a change in the law that
enables a panel to take a fresh look at an issue, it must mark an “unequivocal”
change, “not a mere ‘hint’ of how the Court might rule in the future.” Id. at
279 (citation omitted).         The decision LSU cites, National Federation of
Independent Business v. Sebelius, 567 U.S. 519 (2012), does not meet that
standard when it comes to the analysis that Pederson and our other cases used
in finding waivers of sovereign immunity from states’ acceptance of federal
funds. 3
       Some background on the inquiry for determining when the receipt of
funds amounts to an Eleventh Amendment waiver is warranted at this point.
Congress can use its Spending Power to entice states to implement its policy
objectives, even if it could not impose those policies directly through legislation.
South Dakota v. Dole, 483 U.S. 203, 206–207 (1987). It does so by granting
funds to the states and conditioning the receipt of those funds on compliance



       3  We thus need not address the Gruvers’ contention that preclusion bars LSU from
relitigating the Eleventh Amendment issue it lost in Pederson. While Eleventh Amendment
immunity is a jurisdictional matter, Watson v. Texas, 261 F.3d 436, 440 n.5 (5th Cir. 2001),
preclusion is not, Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005).
Indeed, a reason why issue preclusion does not typically apply to pure questions of law is that
the more flexible doctrine of stare decisis provides enough stability and protection against
unnecessary litigation burdens. See 18 RESTATEMENT (SECOND) OF JUDGMENTS § 29(7) &
cmt. i (AM. LAW. INST. 1982); CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 4425 (3d ed. 2019).
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                                     No. 19-30670
with federal mandates. Id. If a state accepts federal funds, it can be held to
conditions attached to those funds so long as the grant and conditions comply
with the five-part test laid out in South Dakota v. Dole, 483 U.S. 203. That
test is: (1) a federal expenditure must benefit the general welfare; (2) any
condition on the receipt of federal funds must be unambiguous; (3) any
condition must be reasonably related to the purpose of the federal grant; (4) the
grant and any conditions attached to it cannot violate an independent
constitutional provision; and (5) the grant and its conditions cannot amount to
coercion as opposed to encouragement. Id. at 207–08, 210.
      One condition Congress can attach to funds is a recipient’s waiver of its
Eleventh Amendment immunity. Pace, 403 F.3d at 278–79. As is usually true
for waivers, any such waiver must be knowing and voluntary. Id. at 277–78
(citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 682 (1999)). So when it comes to a condition waiving sovereign
immunity, Dole’s second and fifth requirements serve dual roles: they ensure
not only that Congress’s exercise of the Spending Power is valid but also that
a state’s immunity waiver is knowing and voluntary. Id. at 277–79. If a waiver
condition is unambiguous, then a state knows the consequence of accepting any
associated funds. Id. at 279. Likewise, if a waiver condition is not coercive,
then the state’s acceptance of conditioned funds is voluntary. Id.
      LSU’s appeal centers on Dole’s “no coercion” requirement. 4 Pace held
that section 2000d–7’s waiver condition is not coercive, noting that a state



      4  LSU also argues that Congress cannot use its Article I powers to force a state to
constructively waive its Eleventh Amendment immunity based on its presence in a regulated
field. That argument comes from College Savings Bank v. Florida Prepaid Postsecondary
Education Expense Board, 527 U.S. 666. But we rejected the same challenge to section
2000d–7 in Pace. We pointed out that College Savings “expressly distinguished conditional-
spending waivers of Eleventh Amendment immunity” as “‘fundamentally different from’
illegitimate constructive waivers.” 403 F.3d at 285 (quoting College Savings, 527 U.S. at
686). LSU does not cite to an intervening change of law on this point, so Pace controls.
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                                      No. 19-30670
agency could retain its Eleventh Amendment immunity by declining federal
funding without affecting other state agencies’ funding eligibility. Id. at 287.
       According to LSU, NFIB shows that our caselaw is wrong about the
absence of coercion. NFIB held that Congress’s threat to withhold all Medicaid
funding from states that did not agree to dramatically expand Medicaid under
the Affordable Care Act was unconstitutionally coercive. 567 U.S. at 575–85. 5
LSU contends that NFIB identified two situations, present here, when
conditional spending rises to the level of coercion. First, it claims that NFIB
recognized it is coercive for Congress to attach conditions “that do not . . .
govern the use of the funds.” See NFIB, 567 U.S. at 580. 6 That would pose a
problem for section 2000d–7 because its Eleventh Amendment waiver does not
“govern the use of funds” but instead allows suit alleging sex discrimination in
any programs the recipient administers. Second, LSU asserts NFIB held that
Congress cannot surprise states with post-acceptance conditions. See id. at
584. And yet, LSU says, Congress did exactly that when it enacted section
2000d–7 fourteen years after passing Title IX.
       LSU’s first argument misreads NFIB. Its “govern the use of the funds”
language merely delineates between two types of spending conditions. Both
can be constitutional, but they are subject to different scrutiny. The easier
situation is when Congress places a direct restriction on how a state uses
federal funds. Id. at 580. A restriction of that sort is constitutional because it


       5 Chief Justice Roberts wrote for a plurality on this point. But because the plurality
struck down Medicaid expansion on narrower grounds than the joint dissent, the plurality
opinion is binding. Miss. Comm’n on Envtl. Quality v. E.P.A., 790 F.3d 138, 176 & n.22 (D.C.
Cir. 2015) (per curiam); Mayhew v. Burwell, 772 F.3d 80, 88–89 (1st Cir. 2014); see also Marks
v. United States, 430 U.S. 188, 193 (1977).
       6 LSU suggests that this argument also pertains to Dole’s relatedness inquiry. But

NFIB focused on the coercion inquiry; it “did not address the ‘relatedness’ element.” Arbogast
v. Kan., Dep’t of Labor, 789 F.3d 1174, 1187 n.5 (10th Cir. 2015). Our holding that section
2000d–7’s waiver condition is sufficiently related to Title IX’s antidiscrimination goals thus
stands. See Miller, 421 F.3d at 350.
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“ensures that the funds are spent according to [Congress’s] view of the ‘general
Welfare.’” Id. But, the Chief Justice explained, Congress can also impose
conditions that do not directly “govern the use of the funds” and instead
attempt to “pressur[e] the States to accept policy changes.”        Id.   Such a
condition may, for instance, “threat[en] to terminate other significant
independent grants.” Id. And because those conditions “cannot be justified”
on the same basis as the first type of condition, a different test is appropriate
to assess their constitutionality: the coercion inquiry. Id. This latter type of
condition was at issue in Dole, where a law withheld five percent of a state’s
federal highway funds unless the state raised its drinking age to 21. Id. The
law “was not a restriction on how the highway funds . . . were to be used,” so
the Dole Court had to “ask[] whether the financial inducement offered by
Congress was so coercive as to pass the point at which pressure turns into
compulsion.” Id. (internal quotation marks omitted) (quoting Dole, 483 U.S. at
211). In other words, determining that a condition does not “govern the use of
the funds” triggers the coercion question (as our prior cases recognized in
applying the coercion analysis); it does not answer that question. LSU’s first
argument thus fails to show that NFIB upended our understanding of what
constitutes coercion.
      The second of LSU’s arguments does not establish an unequivocal
change in the coercion inquiry either. Section 2000d–7’s waiver condition is
not new or surprising in the same way Medicaid expansion was for the state
plaintiffs in NFIB. For starters, NFIB did not hold that every new condition
imposed on already existing funding streams is invalid. On the contrary, NFIB
explained that Dole permitted exactly that kind of condition, so long as it is not
coercive. See id. at 580 (noting that “no new money was offered to the States
to raise their drinking ages” in Dole). Indeed, Congress “make[s] changes to
federal spending programs all the time.” Samuel R. Bagenstos, The Anti-
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                                 No. 19-30670
Leveraging Principle and the Spending Clause After NFIB, 101 GEO. L.J. 861,
888 (2013) (citing examples). The problem in NFIB was that Congress had
conditioned all of a state’s Medicaid funding on accepting significant
obligations that created a new program entirely different than the original one
the state had opted in to. The Chief Justice described the new conditions as
“accomplish[ing] a shift in kind, not merely degree” such that although
“Congress may have styled the expansion a mere alteration of existing
Medicaid,” it was actually “enlisting the States in a new health care program.”
Id. at 583–84. Section 2000d–7 does not do that. While it did add a new
condition to federal funds fourteen years after Congress and President Nixon
enacted Title IX, the condition does not resemble the creation of a brand-new
legislative program.
      For another thing, section 2000d–7 has been on the books for over thirty
years, all the while LSU has continued to accept federal funding. Cf. Pace, 403
F.3d at 279 (explaining that, for waiver purposes, “actual acceptance of clearly
conditioned funds is generally voluntary”).     By contrast, the NFIB state
plaintiffs challenged the Affordable Care Act the day it became law. 567 U.S.
at 540. “The fact that the State has long accepted . . . dollars notwithstanding
the challenged conditions may be an additional relevant factor in the contract-
like analysis the Court has in mind for assessing the constitutionality of
Spending Clause legislation.” Miss. Comm’n on Envtl. Quality v. E.P.A., 790
F.3d 138, 179 (D.C. Cir. 2015) (per curiam). For these reasons, LSU cannot
demonstrate that NFIB’s principle against “surprising,” postenactment
spending conditions clearly applies with equal force to section 2000d–7.
      We therefore conclude that NFIB does not unequivocally alter Dole’s
conditional-spending analysis. LSU does not cite, nor could we find, any case
holding that NFIB marks such a transformation of Spending Clause principles.
And the longstanding Title IX funding arrangement is not on all fours factually
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                                No. 19-30670
with the Medicaid expansion NFIB addressed. The threat of LSU losing what
amounts to just under 10% of its funding is more like the “relatively mild
encouragement” of a state losing 5% of its highway funding (less than 0.5% of
South Dakota’s budget) than the “gun to the head” of a state losing all of its
Medicaid funding (over 20% of the average state’s budget). See NFIB, 567 U.S.
at 580–82.
      As a result, we remain bound by our precedent: LSU has waived
Eleventh Amendment immunity by accepting federal funds. Pederson, 213
F.3d at 876. Congress did not coerce it to do so. Pace, 403 F.3d at 287. LSU
is free to avoid Title IX obligations by declining federal funds without
threatening other state agencies’ funding. Id.
                                    ***
      The district court’s denial of LSU’s motion to dismiss for lack of
jurisdiction is AFFIRMED.




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