                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4505
                         ___________________________

                                 Elizabeth Fryberger

                         lllllllllllllllllllllPlaintiff - Appellee

                                          USA

                              lllllllllllllllllllllIntervenor

                                            v.

    University of Arkansas; Board of Trustees of the University of Arkansas

                      lllllllllllllllllllllDefendants - Appellants

                              ------------------------------

                                   State of Arizona

                 lllllllllllllllllllllAmicus on Behalf of Appellant(s)

                              Equal Rights Advocates

                 lllllllllllllllllllllAmicus on Behalf of Appellee(s)

State of Arkansas; State of Kansas; State of Louisiana; State of Nebraska; State of
                          South Carolina; State of Texas

                  lllllllllllllllllllllAmici on Behalf of Appellant(s)
                                        ____________
                      Appeal from United States District Court
                 for the Western District of Arkansas - Fayetteville
                                  ____________

                            Submitted: February 13, 2018
                                Filed: May 2, 2018
                                  ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

     Elizabeth Fryberger sued the University of Arkansas and its Board of Trustees.
The district court1 partly denied the University’s motion to dismiss. It appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

       Fryberger sued the University over its response to her report of a sexual assault
on campus. She sought compensatory and punitive damages for violations of Title
IX of the Education Amendments of 1972. Title IX says (with exceptions): “No
person in the United States shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681(a).

       The University moved to dismiss on the basis of sovereign immunity. The
district court refused to dismiss the Title IX claims, citing the “Civil rights remedies
equalization” amendment of 1986 (the Remedies Equalization amendment), 42 U.S.C.
§ 2000d-7, and Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76 (1992).



      1
      The Honorable P.K Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.

                                          -2-
       “[D]enials of motions to dismiss on Eleventh Amendment immunity grounds
are immediately appealable.” United States ex rel. Rodgers v. Arkansas, 154 F.3d
865, 867 (8th Cir. 1998), citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 147 (1993) (“States and state entities that claim to be
‘arms of the State’ may take advantage of the collateral order doctrine to appeal a
district court order denying a claim of Eleventh Amendment immunity.”). This court
reviews de novo questions of sovereign immunity. Lors v. Dean, 746 F.3d 857, 861
(8th Cir. 2014).

      Under the Eleventh Amendment and constitutional principles of sovereign
immunity, “an unconsenting State is immune from suits brought in federal courts by
her own citizens as well as by citizens of another state.” Port Auth. Trans-Hudson
Corp. v. Feeney, 495 U.S. 299, 304 (1990), quoting Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984). “A State, however, may choose to waive its
immunity in federal court at its pleasure.” Sossamon v. Texas, 563 U.S. 277, 284
(2011).

       “Congress may require a waiver of state sovereign immunity as a condition for
receiving federal funds.” Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir.
2000) (en banc), citing College Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666 (1999). However, because “[s]overeign immunity
principles enforce an important constitutional limitation on the power of the federal
courts,” “[a] State’s consent to suit must be ‘unequivocally expressed’ in the text of
the relevant statute.” Sossamon, 563 U.S. at 285, quoting Pennhurst, 465 U.S. at 99.
“Only by requiring this ‘clear declaration’ by the State can we be ‘certain that the
State in fact consents to suit.’” Id. at 284, quoting College Sav., 527 U.S. at 680.

     Fryberger argues that under the Remedies Equalization amendment, the
University consented to this suit by accepting federal funds. The University
acknowledges it accepted federal funds. It also does not challenge—and this court

                                         -3-
does not address—Congress’s authority to enact Title IX or the Remedies
Equalization amendment under the Spending Clause. See Sossamon, 563 U.S. at 282
n.1 (declining to address Congress’s authority to enact RLUIPA under the Spending
Clause). The question is whether the University’s consent is unequivocally expressed
in the Remedies Equalization amendment, section 2000d-7(a) (emphasis added):

       (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 . . . , 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.

       (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 violation in the suit against any public or private
       entity other than a State.

       The Remedies Equalization amendment unequivocally expresses the
University’s consent to suit in federal court for violations of Title IX. See Sossamon,
563 U.S. at 291 (“[Section 2000d-7(a)(1)] expressly waives state sovereign immunity
for violations of . . . title IX . . . .”); Lane v. Pena, 518 U.S. 187, 200 (1996) (referring
to § 2000d-7 as “an unambiguous waiver of the States’ Eleventh Amendment
immunity”). Cf. Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997) (“Congress
has unequivocally expressed its intent to abrogate the states’ Eleventh Amendment
immunity for Title IX claims, see 42 U.S.C. § 2000d-7(a)(1) . . . .”), citing Egerdahl
v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995)).

       The University contends, however, that this consent does not extend to the only
relief sought by Fryberger, damages in a Title IX suit. The University relies on


                                            -4-
Sossamon. There, the Supreme Court reaffirmed that “a waiver of sovereign
immunity ‘will be strictly construed, in terms of its scope, in favor of the sovereign.’”
Sossamon, 563 U.S. at 285, quoting Lane, 518 U.S. at 192. Accordingly, “a waiver
of sovereign immunity to other types of relief does not waive immunity to damages.”
Id. (alteration in original), quoting Lane, 518 U.S. at 192. “The question . . . is . . .
whether Congress has given clear direction that it intends to include a damages
remedy. The text must ‘establish unambiguously that the waiver extends to monetary
claims.’” Id. at 289, quoting United States v. Nordic Village, 503 U.S. 30, 34 (1992).

       The Court in Sossamon addressed the waiver provision in the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA). Id. at 280. That waiver
says, “A person may assert a violation of [RLUIPA] as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government.” Id. at 282 (alteration
in original), quoting 42 U.S.C. § 2000cc-2(a). The Court held that “appropriate
relief” does not unambiguously include damages. Id. at 285. Strictly construing the
waiver in favor of the sovereign, the Court said, “‘Appropriate relief’ does not so
clearly and unambiguously waive sovereign immunity to private suits for damages
that we can ‘be certain that the State in fact consents’ to such a suit.” Id. at 285-86,
quoting College Sav., 527 U.S. at 680.

       In contrast, the Remedies Equalization amendment says that in suits against a
state, “remedies (including remedies both at law and in equity) are available for
[violations of Title IX] 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.” § 2000d-
7(a)(2) (emphasis added). This resolves any possible ambiguity in section 2000d-
7(a)(1). Remedies at law include damages. See SCA Hygiene Prod. Aktiebolag v.
First Quality Baby Prod., LLC, 137 S.Ct. 954, 960 (2017) (“damages” are “a
quintessential legal remedy”); Mertens v. Hewitt Assoc., 508 U.S. 248, 255 (1993)
(“Money damages are, of course, the classic form of legal relief.” (emphasis in
original)); Bowen v. Massachusetts, 487 U.S. 879, 893 (1988) (discussing the

                                          -5-
“distinction between an action at law for damages . . . and an equitable action for
specific relief”); Ventura v. Kyle, 825 F.3d 876, 887 (8th Cir. 2016) (“damages” are
a “remedy at law”). Compensatory damages are available in Title IX suits against any
public or private entity other than a state. Franklin, 503 U.S. at 76 (the Title IX
implied right of action, recognized in Cannon v. University of Chicago, 441 U.S. 677,
717 (1979), extends to suits for compensatory damages). See Barnes v. Gorman, 536
U.S. 181, 187 (2002) (“[U]nder Title IX . . . a recipient of federal funds is . . . subject
to suit for compensatory damages”), citing Franklin, 503 U.S. at 76. Thus, the only
“plausible interpretation” is that compensatory damages—remedies at law available
against non-states—are available against states to the same extent. Cf. Sossamon,
563 U.S. at 287 (“[W]here a statute is susceptible of multiple plausible
interpretations, including one preserving immunity, we will not consider a State to
have waived its sovereign immunity.”).

       The University argues that Congress did not intend the waiver to include Title
IX suits for damages, because it was unclear in 1986 (when Congress enacted the
Remedies Equalization amendment) whether there was a cause of action for damages.
In 1986, the Supreme Court had decided Cannon, which held there is a private Title
IX cause of action, but not Franklin, which held that the cause of action extends to
suits for compensatory damages.

      But this context supports finding a waiver here. First, it shows that Congress
intended to create an unambiguous waiver of state sovereign immunity including suits
for damages. The Court explained:

       [Section 2000d-7] was enacted in response to our decision in Atascadero
       State Hospital v. Scanlon, 473 U.S. 234, 105 [] (1985), where we held
       that Congress had not unmistakably expressed its intent to abrogate the
       States’ Eleventh Amendment immunity in the Rehabilitation Act, and
       that the States accordingly were not subject to suit in federal court by
       litigants seeking retroactive monetary relief under § 504. . . . By

                                           -6-
      enacting [section 2000d-7], Congress sought to provide the sort of
      unequivocal waiver that our precedents demand.

Lane, 518 U.S. at 198 (internal quotation marks and citation omitted). Second, it
shows Congress intended the waiver to apply in Title IX suits. Congress “was
legislating with full cognizance of” Cannon. See Franklin, 503 U.S. at 72 (“[Section
2000d-7] cannot be read except as a validation of Cannon’s holding.”); Cf. id. at 78
(Scalia, J., concurring) (“42 U.S.C. § 2000d-7(a)(2), must be read, in my view, not
only ‘as a validation of Cannon’s holding,’ . . but also as an implicit acknowledgment
that damages are available [in Title IX suits].”). Thus, Congress “specifically
considered state sovereign immunity,” including immunity to Title IX suits for
damages, and “intentionally legislated on the matter,” conditioning funds on a waiver
of that immunity. See Sossamon, 563 U.S. at 290, citing Spector v. Norwegian
Cruise Line Ltd., 545 U.S. 119, 139 (2005) (“[C]lear statement rules ensure Congress
does not, by broad or general language, legislate on a sensitive topic inadvertently or
without due deliberation.”).

       The University also argues the text of section 2000d-7(a) is ambiguous,
because rather than ending with the concept that “damages are available against a
state,” it continues with “damages are available against a state to the same extent as
a non-state.” True, a state must look outside the text to Franklin in order to
determine that compensatory damages are available against non-states. The
University concludes the waiver is not “‘unequivocally expressed’ in the text of the
relevant statute.” See id., at 285 (emphasis added). See also Dellmuth v. Muth, 491
U.S. 223, 230 (1989) (“[E]vidence of congressional intent must be both unequivocal
and textual.” (emphasis added)).

     The text is not ambiguous. As discussed, it “establish[es] unambiguously that
the waiver extends to” the Cannon-Franklin cause of action for damages. See
Sossamon, 563 U.S. at 289. This satisfies the clear statement rule. Cf. Sossamon,


                                         -7-
563 U.S. at 289 n.6 (“Liability against nonsovereigns could not put the states on
notice that they would be liable in the same manner, absent an unequivocal textual
waiver.”). The text of the waiver need not also expressly restate the Cannon-Franklin
cause of action. Cf. FDIC v. Meyer, 510 U.S. 471, 484 (1994) (explaining that
“whether there has been a waiver” of the federal government’s sovereign immunity
and whether there is a “cause of action for damages” are “analytically distinct
inquiries” (internal quotation marks omitted)). If the University were correct, the
Remedies Equalization amendment would be entirely ineffective, because it similarly
relies on the substantive law of each listed statute without expressly stating a cause
of action for any kind of relief. The University rightly does not argue this. See, e.g.,
Dinkins v. Correctional Med. Servs., 743 F.3d 633, 635 (8th Cir. 2014) (per curiam)
(“As to the request for damages, the [state agency] waives sovereign immunity under
[section 504 of the Rehabilitation Act] by accepting federal funds.”), citing § 2000d-
7(a).

         The University and its amici emphasize the Court’s holding in Lane that
section 2000d-7(a) “is not so free from ambiguity that we can comfortably conclude,
based thereon, that Congress intended to subject the Federal Government to awards
of monetary damages for violations of § 504(a) of the [Rehabilitation] Act.” 518 U.S.
at 200. However, the lack of clarity in Lane—whether section 2000d-7(a)(2)’s phrase
“public or private entity” included the federal government—does not create
ambiguity here, where state immunity is at issue. Section 2000d-7(a) speaks clearly
to state immunity. See id. at 200 (“Given the care with which Congress responded
to our decision in Atascadero by crafting an unambiguous waiver of the States’
Eleventh Amendment immunity in [42 U.S.C. § 2000d-7(a)(1)], it would be ironic
indeed to conclude that the same provision ‘unequivocally’ establishes a waiver of
the Federal Government’s sovereign immunity against monetary damages awards
. . . .”).




                                          -8-
       The Remedies Equalization amendment clearly and unambiguously expresses
the University’s consent to Title IX suits for damages. By accepting federal funds,
the University in fact consented to suits for compensatory damages for violations of
Title IX. See Cherry v. University of Wisconsin Sys. Bd. of Regents, 265 F.3d 541,
555 (7th Cir. 2001) (under 2000d-7(a), state waives sovereign immunity to Title IX
suit for compensatory damages by accepting federal funds), citing Pederson v. LSU,
213 F.3d 858, 876 (5th Cir. 2000) and Litman v. George Mason Univ., 186 F.3d 544,
555 (4th Cir. 1999). Cf. Dinkins, 743 F.3d at 635 (under 2000d-7(a), state waives
sovereign immunity to suits seeking damages for violations of section 504 of the
Rehabilitation Act).

     The district court did not err in refusing to dismiss Fryberger’s Title IX claims.
Because the University waived its immunity, this court need not consider whether
Congress, under section 5 of the Fourteenth Amendment, abrogated it.

       This court also need not consider whether punitive damages are available. The
district court did not rule on this. Neither party raised it on appeal. This court’s
holding on compensatory damages resolves whether the University is immune from
suit. See Puerto Rico Aqueduct, 506 U.S. at 141, 144-45 (“district court order
denying a claim . . . to Eleventh Amendment immunity from suit” is “effectively
unreviewable on appeal,” and thus appealable under the collateral order doctrine,
because “the value to the States of their Eleventh Amendment immunity . . . is . . . lost
as litigation proceeds past motion practice”). See also Espinal-Dominguez v.
Commonwealth of Puerto Rico, 352 F.3d 490, 499 (1st Cir. 2003) (no collateral
order jurisdiction where “a State asserts only that a singular remedy, compensatory
damages, is precluded by the Eleventh Amendment, yet acknowledges that it is
subject to the plaintiff’s federal court suit”); Cherry v. University of Wisconsin Sys.
Bd. of Regents, 265 F.3d 541, 547 (7th Cir. 2001) (declining to address claim that
state agency is immune from a punitive damages award on interlocutory appeal
because “[a] claim of immunity to a certain class of damages” is different than a claim

                                          -9-
to immunity from suit); Burns-Vidlak ex rel. Burns v. Chandler, 165 F.3d 1257,
1260 (9th Cir. 1999) (no collateral order jurisdiction over claim of immunity to
punitive damages where the state “concedes that it is subject to suit”).

                                   *******

      The judgment is affirmed.
                     ______________________________




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