Mansourian v. Regents of University of California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AREZOU MANSOURIAN; LAUREN 
MANCUSO; CHRISTINE WING-SI NG,
Plaintiffs-Appellants, No. 08-16330
v. D.C. No.
2:03-cv-02591-
REGENTS OF THE UNIVERSITY OF
CALIFORNIA, UNIVERSITY OF  FCD-EFB
CALIFORNIA AT DAVIS; LAWRENCE ORDER AND
VANDERHOEF; GREG WARZECKA; AMENDED
PAM GILL-FISHER; LAWRENCE OPINION
SWANSON,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding

Argued and Submitted
October 8, 2009—San Francisco, California

Filed February 8, 2010
Amended April 20, 2010

Before: Mary M. Schroeder and Marsha S. Berzon,
Circuit Judges, and Milton I. Shadur,* District Judge.

Opinion by Judge Berzon

*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.

5813
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5817

COUNSEL

Noreen Farrell (argued), Debra Smith, James C. Sturdevant,
Monique Olivier, San Francisco, California; Kristen Galles,
Alexandria, Virginia, for plaintiffs-appellants Arezou Man-
sourian, Lauren Mancuso, and Christine Wing-Si Ng.

Nancy J. Sheehan, Sacramento, California, for defendants-
appellees Regents of the University of California et al.
5818 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
ORDER

The opinion filed on February 8, 2010, is hereby amended.
The amended opinion is attached hereto. With this amend-
ment, Judges Schroeder and Berzon have voted to deny the
petition for rehearing and to reject the suggestion for rehear-
ing en banc, and Judge Shadur so recommends.

The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the suggestion
for rehearing en banc is REJECTED. No future petitions for
rehearing will be entertained.

OPINION

BERZON, Circuit Judge:

The statute known as Title IX, 20 U.S.C. § 1681, is widely
recognized as the source of a vast expansion of athletic oppor-
tunities for women in the nation’s schools and universities, so
much so that a company that sells women’s athletic apparel
now mimics its name. See www.titlenine.com. Despite that
renown, the district court in this case held that a university
that receives federal funds cannot be held liable in damages
for failing effectively to accommodate the athletic interests of
both men and women unless the aggrieved women first pro-
vide the appropriate university officials with notice of their
disadvantageous treatment and an opportunity to cure it.

We disagree and so, with respect to the central issue in this
case, reverse the district court’s grant of summary judgment
on that ground. We hold as well that the defendant university
is not entitled to summary judgment on the alternative ground
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5819
that it has complied with Title IX. We also reverse the order
dismissing the plaintiffs’ equal protection claim and remand
for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Arezou Mansourian, Lauren Mancuso, and Christine Wing-
Si Ng (hereafter plaintiffs or students) are women who wres-
tled in high school and chose to attend the University of Cali-
fornia, Davis (UCD) so they could participate in the
university’s acclaimed wrestling program, which had long
provided opportunities for women.1 The plaintiffs participated
in varsity wrestling and enjoyed the benefits associated with
varsity status: training, coaching, and laundry services; aca-
demic tutoring; insurance; and access to varsity facilities and
equipment.2 UCD did not operate separate wrestling teams for
men and women; a handful of women wrestlers participated
in what was largely a men’s team, practicing with the men
and receiving coaching from Coach Mike Burch.

During the 2000-2001 academic year, UCD eliminated all
women from the wrestling team. After the students protested
to UCD administrators and filed a complaint with the Office
for Civil Rights (OCR),3 UCD agreed to permit women again
1
Nancy Chiang, an additional plaintiff named in the complaint, was on
a leave of absence from UCD when the complaint was filed. She dis-
missed her claims in June 2007. Mansourian, Ng, and Mancuso graduated
from UCD during the course of the litigation.
2
UCD disputes the very existence of a women’s varsity wrestling pro-
gram, insisting that the plaintiffs were merely “permitted to practice with
the wrestling team.” UCD acknowledges, however, that the plaintiffs “par-
ticipated in wrestling” and that Mansourian, at least, was “on the wrestling
team roster” and received varsity-associated benefits. Moreover, UCD
listed four female varsity wrestlers in its 1999-2000 athletics report pursu-
ant to the Equity in Athletics Disclosure Act, 20 U.S.C. § 1092(g). View-
ing the facts in favor of the plaintiffs on UCD’s motion for summary
judgment, we conclude that the plaintiffs were varsity wrestlers for pur-
poses of Title IX.
3
OCR is the division of the United States Department of Education
charged with enforcing Title IX.
5820 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
to participate in varsity wrestling. Their participation, how-
ever, was conditioned on their ability to beat male wrestlers
in their weight class, using men’s collegiate wrestling rules.
(Prior to their elimination from the team, women wrestlers at
UCD had competed only against other women and used inter-
national freestyle rules.) As a result of the new requirement
that they compete against men under men’s rules, the female
students were unable to participate on the wrestling team and
lost the benefits associated with varsity status, including
scholarships and academic credit.

The students then filed a class action against UCD and sev-
eral UCD officials in their individual and official capacities,
on behalf of all current and future female UCD students
denied equal athletic participation opportunities. The plain-
tiffs sought damages and injunctive relief under Title IX and
also asserted equal protection claims under 42 U.S.C. § 1983.4

Just before the scheduled hearing on class certification, the
plaintiffs requested a stay due to their attorney’s serious ill-
ness. During the ten-month stay, Mancuso, the only named
plaintiff still attending UCD at that point, graduated. As soon
as the stay ended, the plaintiffs moved to add as plaintiffs
three students, Kelsey Brust, Laura Ludwig, and Jessica
Bulala, all still enrolled at UCD. The district court refused to
allow the amendment, holding that the plaintiffs failed to meet
the good cause required under Federal Rule of Civil Proce-
dure 16 when such a motion is filed after the issuance of a
scheduling order. See Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 607-08 (9th Cir. 1992). Without any named
plaintiffs currently attending UCD, the plaintiffs stipulated to
dismissal of the class claims for injunctive relief.
4
The Title IX claims are asserted only against the university. The indi-
vidual defendants are Larry Vanderhoef, University Chancellor; Greg
Warzecka, Athletic Director; Pam Gill-Fisher and Lawrence Swanson,
Associate Athletic Directors; and Robert Franks, Associate Vice Chancel-
lor for Student Affairs. We refer to the individual defendants and the Uni-
versity collectively as “UCD.”
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5821
The district court subsequently dismissed the § 1983 claim
as “subsumed” by the Title IX claim, citing Middlesex County
Sewer Authority v. National Sea Clammers Ass’n., 453 U.S.
1 (1981). The district court then granted UCD’s motion for
summary judgment, holding that the students were required,
to perfect their claim, to give UCD notice in advance of filing
suit of the alleged Title IX violation and an opportunity to
cure it, and had failed to do so. The students timely appealed.

ANALYSIS

We review de novo the district court’s dismissal on the
pleadings pursuant to Rule 12(c), Dunlap v. Credit Protection
Ass’n, L.P., 419 F.3d 1011, 1012 n.1 (9th Cir. 2005), as well
as the grant of summary judgment. Avista Corp. Inc. v. Wolfe,
549 F.3d 1239, 1246 (9th Cir. 2008). We review the denial of
a motion to amend under Rule 16(b) for abuse of discretion.
Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir.
2006).

Before proceeding to discuss the merits of this case, we
consider whether we have jurisdiction to decide the plaintiffs’
challenge to the district court’s denial of their motion to add
Brust, Bulala, and Ludwig as plaintiffs. We hold that this
issue is moot and so beyond our jurisdiction, for the reasons
we now explain.

[1] After the district court denied the motion, Brust,
Bulala, and Ludwig initiated a separate lawsuit against UCD.
The district court certified a class of “[a]ll present, prospec-
tive, and future women students at [UCD] who seek to partici-
pate in and/or who are deterred from participating in
intercollegiate athletics at [UCD].” Stipulated Judgment and
Order at 1, Brust v. Regents of the Univ. of Cal., No. 07-1488
(E.D. Cal. Oct. 19, 2009). The parties to the Brust action
reached a settlement, approved by the district court, which
“resolves all class member claims for injunctive relief.” Id. at
10. Moreover, Brust, Ludwig, and Bulala have now graduated
5822 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
from UCD. It is therefore apparent that, even if the district
court had erred in denying the motion to add Brust, Ludwig,
and Bulala initially, which we do not decide, they would no
longer be appropriate plaintiffs in this litigation for the pur-
poses of injunctive relief, as the current plaintiffs recognize.
See Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007)
(“Generally, once a student graduates, he no longer has a live
case or controversy justifying declaratory and injunctive relief
against a school’s action or policy, and his case is therefore
moot.”); Cole v. Oroville Union High Sch, 228 F.3d 1092,
1099 (9th Cir. 2000) (holding, where the two original plain-
tiffs had graduated and a third, later-joined plaintiff subse-
quently graduated before the appeal, that all three lacked
standing to seek injunctive relief).

The plaintiffs contend, however, that the Brust settlement
does not preclude current female students from seeking the
specific injunctive relief — not awarded as part of the Brust
settlement — of restoring the women’s wrestling program.
That may be so; we need not decide whether it is or not. There
are no current students in this case seeking that relief; no
identified, current students looking to intervene in this case to
seek that relief; and no identified, current students whom the
plaintiffs seek to add to the case for purposes of obtaining that
relief.

[2] We therefore may not reach the merits of the claim that
the district court improperly denied the motion to add new
plaintiffs, as there is presently no cognizable dispute that
would be affected by such a determination.5 See, e.g., McQuil-
5
The parties did not inform this court before oral argument that (1) the
putative additional plaintiffs had also all graduated and (2) those plaintiffs
had settled their separate lawsuit for class injunctive relief and were await-
ing approval of that settlement by the district court. We as judges take our
responsibilities seriously, preparing carefully before argument on all
issues presented in the briefs. Where, as here, the complexion of the case
has entirely changed while the appeal is pending, counsel for both parties
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5823
lion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 2004)
(holding that a prisoner’s successful habeas petition and sub-
sequent relief rendered moot his claim for injunctive and
declaratory relief under § 1983); Porter v. Jones, 319 F.3d
483, 489 (9th Cir. 2003) (noting that a case or issue becomes
moot when “the parties lack a legally cognizable interest in
the outcome” (quotation omitted)); Di Giorgio v. Lee (In re
Di Giorgio), 134 F.3d 971, 974 (9th Cir. 1998) (holding that
tenants’ challenge to a state statute permitting their eviction
was moot after they voluntarily vacated the property).

[3] Turning to the merits of the students’ damages claims,
we begin by setting out the statutory and regulatory frame-
work governing Title IX athletics cases. Title IX provides that

[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under
any education program or activity receiving Federal
financial assistance.

20 U.S.C. § 1681(a). As applied to intercollegiate athletics,
the Department of Education’s Title IX regulations interpret
the statute as requiring funding recipients to “provide equal
athletic opportunity for members of both sexes.” 34 C.F.R.
§ 106.41(c).6

have an obligation to so inform the court. That is so even if a party
believes it has a basis for arguing that the issue should still be decided.
No such notice of changed circumstances was given here. Instead, the
panel learned only at argument that Brust, Ludwig, and Bulala had gradu-
ated, and learned only after independent post-argument research that there
was a motion pending, to be heard in a matter of days, for approval of a
settlement for broad-ranging injunctive relief in the Brust litigation.
6
The existence of a private right of action to enforce Title IX is well-
established and not at issue in this case. See Cannon v. Univ. of Chicago,
441 U.S. 677 (1979).
5824 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
[4] The regulations establish two components of Title IX’s
equal athletic opportunity requirement: “effective accommo-
dation” and “equal treatment.” “Effective accommodation”
Title IX requirements derive from the Title IX regulation at
34 C.F.R. § 106.41(c)(1), which bases Title IX compliance in
part on whether “the selection of sports and levels of competi-
tion effectively accommodate the interests and abilities of
members of both sexes.”7 The “equal treatment” Title IX stan-
dard, in contrast, derives from 34 C.F.R. § 106.41(c)(2)-(10),
which has been interpreted by OCR to require “equivalence
in the availability, quality and kinds of other athletic benefits
and opportunities provided male and female athletes.”8
Department of Education Office for Civil Rights, Clarification
of Intercollegiate Athletics Policy Guidance: The Three-Part
Test (Clarification) (1996), available at http://www.ed.gov/
about/offices/list/ocr/docs/clarific.html. Effective accommo-
dation claims thus concern the opportunity to participate in
athletics, while equal treatment claims allege sex-based differ-
ences in the schedules, equipment, coaching, and other factors
affecting participants in athletics. See McCormick v. Sch. Dist.
of Mamaroneck, 370 F.3d 275, 299 (2d Cir. 2004) (holding
that a competition schedule permitting male but not female
7
“Effective accommodation” as a doctrine within Title IX jurisprudence
is analytically distinct from similarly titled doctrines under other statutes
— for example, the obligation to “mak[e] reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individ-
ual with a disability” under the Americans with Disabilities Act, 42 U.S.C.
§ 12112(b)(5).
8
The regulation requires OCR to consider, in assessing whether equal
opportunities are available to students of both sexes:
The provision of equipment and supplies; [s]cheduling of games
and practice time; [t]ravel and per diem allowance; [o]pportunity
to receive coaching and academic tutoring; [a]ssignment and
compensation of coaches and tutors; [p]rovision of locker rooms,
practice and competitive facilities; [p]rovision of medical and
training facilities and services; [p]rovision of housing and dining
facilities and services; [p]ublicity.
34 C.F.R. § 106.41(c).
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5825
high school soccer players to participate in state and regional
championships deprived female players of equal treatment
under Title IX); see also Pederson v. La. State Univ., 213
F.3d 858, 865 n.4 (5th Cir. 2000) (explaining the relationship
between effective accommodation and equal treatment
claims); Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1 (2d
Cir. 1999) (same). So “an institution may violate Title IX
solely by failing to accommodate effectively the interests and
abilities of student athletes of both sexes,” even if the benefits
provided athletes of both sexes are equivalent. Kelley v. Bd.
of Trs., 35 F.3d 265, 268 (7th Cir. 1994); see also Roberts v.
Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993);
Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993).

Whether a funding recipient has met its “effective accom-
modation” obligation is determined using a “three-part test”
drawn from OCR’s 1979 Policy Interpretation, 44 Fed. Reg.
71,413 (Dec. 11, 1979), and further elaborated in OCR’s 1996
Clarification.9 Congress has specifically authorized OCR to
promulgate regulations governing intercollegiate athletics,10
see Pub. L. No. 93-380, § 844, 88 Stat. 612 (1974), and the
resulting three-part test gives universities three options for
demonstrating compliance with Title IX: (1) showing substan-
tial proportionality (the number of women in intercollegiate
athletics is proportionate to their enrollment); (2) proving that
the institution has a “history and continuing practice of pro-
gram expansion” for the underrepresented sex (in this case,
women); or (3) where the university cannot satisfy either of
9
We and other circuits have held that both the Policy Interpretation and
the Clarification are entitled to deference under Chevron U.S.A. v. Natural
Res. Def. Council, 467 U.S. 837, 843-44 (1984), and Martin v. Occupa-
tional Safety & Health Review Comm’n, 499 U.S. 144, 150 (1991). See
Neal v. Bd. of Trs., 198 F.3d 763, 770, 771 (9th Cir. 1999); accord
Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir. 2002); Kelley,
35 F.3d at 270-71; Cohen, 991 F.2d at 896-97.
10
“Intercollegiate” refers to varsity and junior varsity teams, as opposed
to club or intramural teams, which do not receive coaching or athletic
scholarships and other benefits listed in the regulations. See supra note 8.
5826 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
the first two options, establishing that it nonetheless “fully
and effectively accommodate[s]” the interests of women. 44
Fed. Reg. 71,418.

[5] Funding recipients can satisfy any of the three options
to comply with Title IX. UCD claims to have satisfied the
second option by showing a history and continuing practice of
program expansion.11 Compliance with this option “focuses
on whether an institution has expanded the number of inter-
collegiate participation opportunities” for women, but pro-
vides institutions “flexibility in choosing which teams [they]
add[ ].” Clarification nn. 2-3. The number of “participation
opportunities” for women is defined by the number of female
athletes who actually participate in varsity athletics, except
that athletes who participate in more than one sport are
counted as a participant for each sport they play.12

The district court determined that the plaintiffs had ade-
quately pleaded a claim for effective accommodation under
Title IX by alleging that UCD “chooses to make fewer ath-
letic participation opportunities [available] to female students
than to male students.” The district court did not, however,
11
The record does not demonstrate that UCD has complied with either
Option One or Option Three, and UCD does not contend that it has.
12
Some language in the Clarification suggests that the unduplicated
count of female athletes is relevant in assessing Title IX compliance. For
example, hypothetical Institution C and Institution E comply with Option
Two because their “addition of teams resulted in an increased percentage
of women participating in varsity athletics.” But the Clarification else-
where states that participation opportunities are the relevant metric, and
that a student who plays two varsity sports represents two participation
opportunities, so we assume that the sentence quoted means to refer to
female participation opportunities, not individual women. Similarly,
although this opinion sometimes for brevity refers to the number of “fe-
male athletes” at UCD for the purposes of Option Two compliance, we are
always referring to participation opportunities, a number in which some
female athletes count twice. We also count participation opportunities, not
individuals, when comparing the number of “athletes” to overall student
enrollment.
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5827
reach the merits of whether UCD complied with Option Two,
instead concluding that “money damages cannot be awarded
unless a plaintiff has given notice of and an opportunity to
rectify the specific violation alleged by a Title IX plaintiff.”
Finding that the plaintiffs had failed to provide such notice,
the district court granted summary judgment to UCD.

This circuit has yet to address whether any such require-
ment applies in the athletics context. We conclude that it does
not.

[6] UCD’s notice argument, adopted by the district court,
proceeds by analogy to the Supreme Court’s holding that
notice and an opportunity to cure a violation is an essential
precursor to a sexual harassment suit for damages under Title
IX. We therefore begin by discussing the pertinent Title IX
sexual harassment cases. As will appear, the analogy between
this case and those is not apt.

The starting point for this inquiry is Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992), in which the
defendant school district was aware of a teacher’s sexual
harassment of a student but took no action to stop it. The
Court recognized that Pennhurst State School and Hospital v.
Halderman, 451 U.S. 1, 28-29 (1981), precludes the award of
damages for unintentional violations of statutes, like Title IX,
enacted pursuant to Congress’s spending authority. See
Franklin, 503 U.S. at 74. Franklin held, however, that the
failure to halt harassment of which a school district is aware
constitutes intentional discrimination for which monetary
damages are an appropriate remedy. Id. at 75-76.

Gebser v. Lago Vista Independent School District, 524 U.S.
274 (1998), further defined the scope of a school’s monetary
liability under Title IX for inaction in the face of serious sex-
ual harassment. In Gebser, the Court held that principles of
respondeat superior and constructive notice are inadequate to
impose Title IX liability on a school district for a teacher’s
5828 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
sexual abuse of a high school student. Id. at 285. Noting that
Title IX’s express enforcement scheme, termination of federal
funding, requires “an opportunity for voluntary compliance”
before suspending or terminating funding, see 20 U.S.C.
§ 1682, Gebser held that the judicially implied private right of
action similarly should not impose liability “without regard to
the recipient’s knowledge or its corrective actions upon
receiving notice.” Id. at 289. Monetary damages premised on
constructive notice or respondeat superior for sexual harass-
ment, the Court held in Gebser, would entail a risk that “the
recipient of funds was unaware of the discrimination.” Id. at
287. Rather,

in cases like this one that do not involve official pol-
icy of the recipient entity, . . . a damages remedy will
not lie under Title IX unless an official who . . . has
authority to address the alleged discrimination and to
institute corrective measures . . . has actual knowl-
edge of discrimination . . . and fails adequately to
respond.

Id. at 290 (emphasis added).

[7] Critically for present purposes, Gebser does not make
pre-litigation notice of an alleged violation a prerequisite to
recovery in every Title IX case, or even in every sexual
harassment case. Proof of actual notice is required only when
the alleged Title IX violation consists of an institution’s delib-
erate indifference to acts that “do not involve official policy
of the recipient entity.” Id. In sexual harassment cases, it is
the deliberate failure to curtail known harassment, rather than
the harassment itself, that constitutes the intentional Title IX
violation.13 See Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 641 (1999) (holding that Gebser permits the plain-
tiff “to hold the Board liable for its own decision to remain
13
The harassment itself may be actionable under state law or 42 U.S.C.
§ 1983. Gebser, 524 U.S. at 292.
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5829
idle in the face of known student-on-student harassment in its
schools.”). The Tenth Circuit has held that a corollary of this
principle is that where the official policy is one of deliberate
indifference to a known overall risk of sexual harassment,
notice of a particular harassment situation and an opportunity
to cure it are not predicates for liability. See Simpson v. Univ.
of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007).14

[8] Consistent with the reasoning underlying Gebser, the
Supreme Court has made clear that no notice requirement is
applicable to Title IX claims that rest on an affirmative insti-
tutional decision. Jackson v. Birmingham Board of Education,
544 U.S. 167 (2005), held that a high school athletics coach
fired in retaliation for complaining about discrimination in
athletics funding had a private right of action under Title IX.
The Court held that no pre-litigation notice is required in the
retaliation context. In Gebser and Davis, the Court stated, “we
emphasized that [the notice] limitation on private damages
actions is not a bar to liability where a funding recipient inten-
tionally violates the statute.” Id. at 182 (quotation omitted).
As retaliation is “easily attributable to the funding recipient
and it is always — by definition — intentional,” id., the Court
allowed Jackson’s retaliation claim to proceed without regard
to whether adequate pre-litigation notice and opportunity to
cure the violation had been provided.
14
Simpson concerned two female University of Colorado (CU) students
sexually assaulted by football players and high school football recruits.
The Tenth Circuit held that Gebser’s notice standard did not apply. The
record supported the finding that the head football coach was aware of
“the serious risk of sexual . . . assault during college-football recruiting
efforts [and] that such assaults had indeed occurred during CU recruiting
visits,” Simpson, 500 F.3d at 1184, and that, although the Boulder District
Attorney’s office had recommended a policy to curb such assaults after a
previous incident involving recruits, the policy was not followed and CU
continued to sponsor an “unsupervised player-host program to show high-
school recruits ‘a good time.’ ” Id. The court held this sequence of events
satisfied the “official policy” element of Gebser and that a woman
assaulted thereafter need provide no separate notice and opportunity to
cure before filing suit.
5830 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
[9] Universities’ decisions with respect to athletics are
even more “easily attributable to the funding recipient and . . .
always — by definition — intentional,” id. at 183, than the
retaliation in Jackson. Institutions, not individual actors,
decide how to allocate resources between male and female
athletic teams. Decisions to create or eliminate teams or to
add or decrease roster slots for male or female athletes are
official decisions, not practices by individual students or staff.
Athletic programs that fail effectively to accommodate stu-
dents of both sexes thus represent “official policy of the recip-
ient entity” and so are not covered by Gebser’s notice
requirement. Gebser, 524 U.S. at 290.

Moreover, a judicially imposed notice requirement would
be superfluous in light of universities’ ongoing obligations to
certify compliance with Title IX’s athletics requirements and
to track athletics gender equity data. OCR regulations require
funding recipients to evaluate their policies and certify, as a
condition for receiving funds, that they are “tak[ing] whatever
remedial action is necessary . . . to eliminate . . . discrimina-
tion.” 34 C.F.R. § 106.4; see also id. § 106.3. UCD and other
funding recipients therefore have an affirmative obligation to
ensure compliance with at least one prong of the three-part
effective accommodation test.

The Equity in Athletics Disclosure Act (EADA) further
requires federally funded universities to report to the Depart-
ment of Education and make available to students the number
of undergraduates and athletes, broken down by sex, as well
as sex-segregated data on operating expenses, coach salaries,
athletic scholarships, recruiting expenditures, and revenues.
20 U.S.C. § 1092(g). UCD’s EADA reports contain ample
data demonstrating that it could not satisfy the substantial pro-
portionality option and that the trend of increasing female ath-
letic participation reversed after 2001, indicating that UCD
may not have had a continuing practice of program expansion.
Thus, where the alleged harm is unequal provision of athletic
opportunity, the notice requirement would not supply univer-
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5831
sities with information of which they are legitimately
unaware. See Gebser, 524 U.S. at 289.

[10] We conclude for these reasons that pre-litigation
notice and opportunity to cure is not necessary in cases alleg-
ing unequal provision of athletic opportunities in violation of
Title IX. Applying the notice requirement to institutional
decisions would contravene the clear language of Gebser and
its progeny. It would also be inconsistent with funding recipi-
ents’ affirmative obligations to provide nondiscriminatory
athletic participation opportunities and continually to assess
and certify compliance with Title IX.

The Fifth Circuit has reached the same conclusion we do,
holding that

the requirement in the sexual harassment cases —
that the academic institution have actual knowledge
of the sexual harassment — is not applicable for pur-
poses of determining whether an academic institu-
tion intentionally discriminated on the basis of sex
by denying females equal athletic opportunity . . . .
In the instant case, it is the institution itself that is
discriminating.

Pederson, 213 F.3d at 882. The Eighth Circuit, the only other
circuit to address the issue, has assumed, without any analy-
sis, that Gebser’s notice requirement applies equally to Title
IX cases where plaintiffs allege discrimination in the adminis-
tration of an athletic program. Grandson v. Univ. of Minn,,
272 F.3d 568, 575 (8th Cir. 2001). But the plaintiffs in
Grandson did not argue otherwise, id., and the Eighth Circuit
reached the merits of a later Title IX athletics case without
mentioning Grandson, Gebser, or the notice requirement. See
Chalenor, 291 F.3d 1042. It is therefore far from clear that
Grandson is controlling even in the Eighth Circuit. If it is,
then the circuits are already split on the issue, and we find the
Fifth Circuit’s holding (and that of the Tenth Circuit in Simp-
5832 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
son, on a different but related issue) the more persuasive, for
reasons already surveyed.

[11] We therefore join the Fifth Circuit in holding that
Gebser’s notice requirement is inapplicable to cases alleging
that a funding recipient has failed effectively to accommodate
women’s interest in athletics. The district court’s decision
granting summary judgment on that basis is reversed.

UCD also moved for summary judgment on the grounds
that the record demonstrated “a history and continuing prac-
tice of program expansion” for women that satisfied Option
Two of the three-part test. Although the district court granted
summary judgment on the notice grounds discussed above,
UCD contends that we could, alternatively, affirm the district
court’s decision on the merits. See Atel Fin. Corp. v. Quaker
Coal Co., 321 F.3d 924, 926 (9th Cir. 2003). That is so, but
only if, viewing the evidence in the light most favorable to the
students, there are no genuine issues of material fact concern-
ing UCD’s compliance with Option Two. See, e.g., Becerril
v. Pima County Assessor’s Office, 587 F.3d 1162, 1163 (9th
Cir. 2009). On the record before us we cannot affirm on this
alternative ground.

[12] In assessing compliance with Option Two, we must,
under the Clarification, focus on both the institution’s record
of adding female participation opportunities and its current
“plan of program expansion that is demonstrably responsive
to the developing interests and abilities” of women. “History”
and “continuing practice” thus constitute two separate inqui-
ries. We conclude that the undisputed facts fall short of dem-
onstrating UCD’s compliance with either facet of Option
Two.

[13] The Clarification specifies the following factors as
evidence of an institution’s history of program expansion:

[A]n institution’s record of adding intercollegiate
teams, or upgrading teams to intercollegiate status,
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5833
for [women]; an institution’s record of increasing the
number of participants in intercollegiate athletics
who are [women]; and an institution’s affirmative
responses to requests by students or others for addi-
tion or elevation of sports.

The Option Two analysis focuses primarily, but not exclu-
sively, on increasing the number of women’s athletic opportu-
nities rather than increasing the number of women’s teams.
“OCR will assess whether past actions of the institution have
expanded participation opportunities for the underrepresented
sex . . .” (emphasis added).

UCD had seven women’s teams in 1970 and added another
in 1974, thereby increasing the number of female varsity par-
ticipation opportunities. The record indicates that UCD did
not further expand participation opportunities for women until
1996. The 1991 Report of the UCD Title IX Review Commit-
tee (Report) indicated that UCD did not comprehensively
review its compliance with Title IX between 1976 and 1991.
The Report also stated that since 1976, UCD had added two
women’s sports (soccer and cross country track) but dropped
two (golf and field hockey).15 The Report concluded that
UCD’s record “cannot be termed a demonstrably responsive
process of program expansion . . . particularly when female
participation relative to male participation has been decreas-
ing over the past three years.” Internal UCD memoranda from
directors of the athletics program suggest that the numerical
participation gap continued to grow over the next two years.16
15
UCD does not dispute that it eliminated field hockey but denies that
it eliminated a women’s golf team, asserting that UCD “attempted” to start
a women’s golf team in the 1970s that “never got off the ground.” Draw-
ing all reasonable inferences in favor of the plaintiffs, as we must, we
credit UCD’s internal report as accurately describing the elimination of a
women’s golf team.
16
In 1992 an associate athletic director warned of a “backward slide in
compliance,” and in 1993 UCD’s acting athletic director noted that “the
ratio of women participating has decreased slightly in recent years.”
5834 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
In 1995, UCD decided to add three women’s varsity teams.
The university reviewed proposals from five women’s club
teams and elevated water polo, crew and lacrosse to varsity
status. When the three new teams began competing the fol-
lowing year, the number of female athletes rose from 211 to
348, with the difference between female enrollment and
female varsity participation opportunities dropping from
twenty percent to eleven percent.17

UCD represents that it created another women’s varsity
team, indoor track, in 1999. There is some dispute as to
whether indoor track was added as an independent women’s
varsity team or merely extended the track season for the exist-
ing female track team. The record indicates that “adding” the
team was contingent on the fact that it could be accomplished
without awarding additional grants-in-aid to student athletes
or otherwise affecting UCD’s athletics budget, because all the
students who would be participating in indoor track were
already members of the outdoor track team. With or without
an additional female track team, the number of participation
opportunities for female athletes continued to rise, so the dis-
pute over how to characterize the addition of an indoor female
track season does not matter. Indeed, in the 1999-2000 school
year, women varsity athletes at UCD reached a historic high
in both total numbers and proportion of female athletes to
enrolled women students.

Two years later, however, the number of female participa-
tion opportunities had fallen by 17%, even as the number of
women enrolled at the university had grown by 19%. The
number of female participation opportunities fluctuated there-
after, but never regained the apex it reached in 2000. There
were four varsity participation opportunities for every hun-
dred female students in 2000, but only three in 2006.
17
Again, “the number of female athletes” may include athletes who are
counted more than once by virtue of participating in more than one sport.
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5835
[14] In sum, UCD expanded varsity opportunities for
women only between 1996 and 2000. UCD’s elimination of
women from the varsity wrestling team thus took place in the
context of an overall contraction of female athletic participa-
tion opportunities that began in 2000.18 UCD’s post-2000
strategy for sports equality between the sexes appears to have
consisted of reducing varsity athletics overall, and in the pro-
cess reducing men’s participation opportunities more than
women’s participation opportunities by using “roster manage-
ment” to limit the size of men’s teams. The Clarification
explicitly precludes considering such reductions as evidencing
program expansion:

OCR will not find a history and continuing practice
of program expansion where an institution increases
the proportional participation opportunities for
[women] by reducing opportunities for [men] alone
or by reducing participation opportunities for [men]
to a proportionately greater degree than for [women].
. . . [Option Two] considers an institution’s good
faith remedial efforts through actual program expan-
sion. . . . Cuts in the program for [women], even
when coupled with cuts in the program for [men],
18
As noted, supra note 2, the plaintiffs have submitted sufficient facts
showing the existence of female varsity wrestling opportunities to survive
summary judgment. UCD’s subsequent decision to permit women to com-
pete against men for a slot on the team does not affect our analysis. By
requiring women to prevail against men, the university changed the condi-
tions under which women could participate in varsity wrestling in a man-
ner that foreseeably precluded their future participation.
UCD’s contention that it “ha[d] not declared wrestling to be a contact
sport” does not advance its position. First, wrestling is a contact sport
under OCR regulations. 34 C.F.R. § 106.41(b). While women must be per-
mitted to try out for all-male teams if there is no women’s team in that
sport, this requirement is waived for contact sports. Id. But the contact-
sport “exemption did not give [UCD] license to discriminate against [the
plaintiffs] because of their sex once [UCD] decided to allow [them] to join
the team.” Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir. 2005) (cita-
tion omitted).
5836 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
cannot be considered remedial because they burden
members of the sex already disadvantaged by the
present program.

[15] An institution that has eliminated some participation
opportunities for women can still satisfy Option Two if the
elimination is offset by a strong history of program expansion.
In UCD’s case, however, the elimination of women’s wres-
tling opportunities occurred in the context of a women’s ath-
letics program that was, at best, stagnant. We therefore hold
that UCD has not had a history of program expansion for
women and so did not satisfy Option Two through such a his-
tory.

The 1996 Clarification lists two factors that may indicate a
continuing practice of program expansion:

[A]n institution’s current implementation of a non-
discriminatory policy or procedure for requesting the
addition of sports (including the elevation of club or
intramural teams) and the effective communication
of the policy or procedure to students; and an institu-
tion’s current implementation of a plan of program
expansion that is responsive to developing interests
and abilities.

The record contains undisputed evidence that UCD has a
procedure for requesting additional varsity sports and effec-
tively communicates that procedure to students. According to
the procedure distributed to students, the “primary factor” in
UCD’s evaluation of proposals to create new varsity teams is
the “[o]verall impact on intercollegiate program gender equi-
ty.” In 2003, UCD received detailed applications from mem-
bers of four women’s club sports (bowling, horse polo, field
hockey, and rugby) seeking elevation to varsity status. These
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5837
applications indicate that students are aware of the opportu-
nity to request new varsity athletic opportunities.19

The 2003 application was the field hockey club team’s sec-
ond attempt to regain varsity status. An earlier application
was rejected in 1995. At that time, the Title IX Advisory
Committee advocated elevating lacrosse rather than field
hockey to varsity status but noted that field hockey had “de-
veloped strong interest from students” and was “a relatively
strong NCAA sport,” with three Division I teams competing
at nearby universities. The committee recommended that
“[s]hould gender equity not be achieved by the addition of the
three sports proposed, and funding be available in the future,
field hockey would be considered a prime candidate for addi-
tion to the ICA program in the future.”

When field hockey club players applied for varsity status in
2003, however, their application was again denied. In fact,
UCD rejected all four club team applications, even though all
applicants were evaluated as “successful” and “active” club
teams with “a long tradition of participation.” Instead, UCD
decided to create a women’s golf team at the behest of the
men’s golf coach, even though no women attending UCD
were interested enough in golf to participate at the club level
or to request varsity status.

UCD contends that the fact that golf was proposed by the
men’s golf coach absent any demonstrated interest by female
students is irrelevant. We disagree. A funding recipient can
only satisfy Option Two by showing an expansion of partici-
pation opportunities that is “demonstrably responsive to
[women’s] developing interests and abilities . . . includ[ing]
19
UCD points to its Title IX Compliance Officer and grievance proce-
dure as evidence of a practice of program expansion. As both are required
by OCR regulations, 34 C.F.R. § 106.8, and neither affects the number of
female athletes or teams, they do not indicate program expansion for pur-
poses of Option Two.
5838 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
interests that already exist at the institution.” Universities are
free to consider applications from individuals other than stu-
dents, and it is appropriate to evaluate interest at the high
school level as well as among current UCD students. UCD
has failed to establish, however, that the choice of golf was
“demonstrably responsive” to the “developing interests and
abilities” of either current or prospective female students.

The Clarification’s examples of Option Two compliance all
describe institutions that have added women’s varsity teams
based on requests from current club teams; questionnaires
assessing interest among current and incoming female stu-
dents; or survey data that shows “a significant increase in high
school participation in that sport” or identifies the new sport
as “emerging” or “among the most popular sports played by
women” in the relevant region. UCD does not contend that
any current or incoming students expressed interest in golf,
and points to no surveys or other data demonstrating that golf
is a popular or emerging sport among high school girls, either
regionally or nationally.

UCD’s observation that golf is offered at 639 high schools
and 27 community colleges in California does not indicate
that golf’s popularity or growing presence compared to other
sports was a significant factor in its selection.20 UCD also
noted, for example, that 1,646 high schools in the country,
including Davis High School, sponsor field hockey; that
“[r]ugby is an emerging sport for women within the NCAA”
and was offered at Davis High School; and that “[t]here is
growing interest [in bowling] at the community college and
20
Defendant Warzecka chose to create a varsity golf team in part
because the Big West Conference requires participating schools to add
conference-sponsored sports, of which golf is one, before adding other
sports, and because golf could be added at minimal expense, thanks to a
local country club’s willingness to provide a course for UCD athletes to
practice and compete. While athletic conference rules and cost are, of
course, legitimate factors in sport selection, neither takes precedence over
the requirements of Title IX.
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5839
high school level in the state of California.” There is no evi-
dence that UCD evaluated golf as more popular or “emerg-
ing” than these other sports for purposes of meeting the
interests of future students.

Moreover, UCD’s selection of golf, which added only
seven participation opportunities for women, was at odds with
its own stated priority of taking a significant step toward over-
all gender equity. Elevating horse polo, rugby or field hockey
would have added far more female varsity athletes.21

We recognize that budgetary constraints often prevent uni-
versities from creating new teams and adding varsity slots.
But “Title IX does not require that a school pour ever-
increasing sums into its athletic establishment.” Cohen v.
Brown Univ., 991 F.2d at 898-99 n.15. Universities may
achieve compliance by reducing men’s athletic slots until par-
ticipation rates become substantially proportionate to the
undergraduate population. Id.; Neal, 198 F.3d at 771; Kelley,
35 F.3d at 270; Roberts, 998 F.2d at 830. They may not, how-
ever, maintain varsity teams for male students while denying
female students comparable “opportunities to enjoy the thrill
of victory, the agony of defeat, and the many tangible benefits
that flow from just being given a chance to participate in
intercollegiate athletics.” Neal, 198 F.3d at 773.

[16] UCD took a significant step towards Title IX compli-
ance by adding three women’s teams in 1996, but Option Two
requires more than a single step. It requires evidence of con-
tinuous progress toward the mandate of gender equality that
Title IX has imposed on funding recipients for the past thirty
years. The record before us does not contain undisputed facts
showing a history and continuing practice of program expan-
sion that is responsive to women’s interests.
21
UCD’s review committee estimated that field hockey would add 22
female athletes; horse polo, 35; rugby, 30 to 40. Bowling would have
added 12 to 15.
5840 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
[17] We conclude that the grant of summary judgment to
UCD cannot be affirmed on the alternative merits ground that
UCD complies with Title IX’s requirement of providing equal
athletic opportunities to students of both sexes.

The students also sue under 42 U.S.C. § 1983, alleging that
UCD violates the Equal Protection Clause by maintaining an
athletics program that discriminates on the basis of gender.
The district court dismissed the claim because it determined
that “Title IX’s enforcement scheme is sufficiently compre-
hensive to . . . demonstrate that Congress intended to preclude
§ 1983 claims when it enacted this statute.”

[18] Fitzgerald v. Barnstable School Committee, 129 S. Ct.
788 (2009), decided after the district court dismissed the stu-
dents’ claims, held, to the contrary, that Title IX does not bar
§ 1983 suits to enforce rights under the Equal Protection
Clause. As in Fitzgerald, the plaintiffs here invoke § 1983 to
seek damages for violations of constitutional rights. See id. at
796-97 (explaining distinctions between the rights created by
Title IX and those afforded by the Equal Protection Clause).

The defendants concede that the district court ruling does
not survive Fitzgerald but urge us to affirm dismissal of the
§ 1983 claim on other grounds. We decline to do so, for rea-
sons we now explain.

UCD first contends that the § 1983 claim for damages is
precluded by the statute of limitations and that the district
court did not address this argument. In fact, the district court
considered and rejected the statute of limitations defense as to
both the Title IX effective accommodation and § 1983 equal
protection claims in response to UCD’s original motion to
dismiss. The court held that because the students claimed that
they were “currently being subjected to defendants’ allegedly
sex discriminatory practices . . . their claims accrue each and
every day they are denied equal access to athletic participa-
tion.”
 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 5841
[19] The district court was quite correct. Section 1983 “is
presumptively available to remedy a state’s ongoing violation
of federal law.” AlohaCare v. Haw. Dep’t. of Human Servs.,
572 F.3d 740, 745 (9th Cir. 2009) (quotation omitted). A
plaintiff has adequately pled an ongoing claim if she can
“show a systematic policy or practice that operated, in part,
within the limitations period — a systematic violation.”
Douglas v. Cal. Dep’t. of Youth Auth., 271 F.3d 812, 822 (9th
Cir. 2001) (quotation omitted); see also Gutowsky v. County
of Placer, 108 F.3d 256, 259 (9th Cir. 1997) (holding plain-
tiff’s § 1983 claims timely because she alleged “widespread
policy and practices of discrimination [that] continued every
day of her employment, including days that fall within the
limitation period”).22 A university’s ongoing and intentional
failure to provide equal athletic opportunities for women is a
systemic violation. As the plaintiffs were students and there-
fore subject to the policy that allegedly discriminated on the
basis of sex at the time they filed their complaint, their § 1983
claim is not time-barred.

[20] UCD next urges this court to conclude that the § 1983
claim against the individual defendants is precluded by the
doctrine of qualified immunity. The defendants, however, did
not raise a qualified immunity defense in any of their disposi-
tive motions before the district court.23 Our discretion to
affirm on grounds other than those relied on by the district
court extends to issues raised in a manner providing the dis-
trict court an opportunity to rule on it. See Proctor v. Vishay
Intertechnology, Inc., 584 F.3d 1208, 1226 (9th Cir. 2009);
Washington v. Confederated Bands and Tribes of Yakima
22
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), held
that each “[d]iscrete act[ ] such as termination, failure to promote, denial
of transfer or refusal to hire . . . constitutes a separate actionable ‘unlawful
. . . practice’ ” for the purposes of triggering the statute of limitations
period in a Title VII case. Morgan left undisturbed our case law governing
continuing systemic violations.
23
UCD raised a qualified immunity defense in its answer to the stu-
dents’ complaint but never litigated it thereafter.
5842 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
Indian Nation, 439 U.S. 463, 478 n.20 (1979) (“[T]he prevail-
ing party . . . was of course free to defend its judgment on any
ground properly raised below whether or not that ground was
relied upon, rejected, or even considered by the District Court.
. . .”) (emphasis added). As the district court has had no
opportunity to rule on the individual defendants’ qualified
immunity defense, we will not affirm on that basis. The dis-
missal of the students’ § 1983 claim is therefore reversed.

CONCLUSION

[21] For the foregoing reasons, the plaintiffs’ motion to
amend their complaint is dismissed as moot. The district
court’s grant of summary judgment to the defendants on the
Title IX claim is reversed. The district court’s order dismiss-
ing the equal protection § 1983 claim is also reversed, and the
case is remanded for further proceedings consistent with this
opinion.