Full opinion text
CARL E. STEWART, Circuit Judge: We must today determine whether the largest public university in Louisiana has discriminated against women under Title IX in the provision of facilities and teams for intercollegiate athletic competition. Before us are eight appeals, which were consolidated for briefing and argument, concerning allegations of such discrimination against the instant plaintiffs and a putative class of female undergraduates at Louisiana State University (“LSU”). After threading our way through issues relating to class certification and subject matter jurisdiction, we conclude that LSU violated Title IX by failing to accommodate effectively the interests and abilities of certain female students and that its discrimination against these students was intentional. I. Procedural & Factual History On March 23, 1994, three female undergraduate students attending LSU' — Beth Pederson, Lisa Ollar, and Samantha Clark (“Pederson Plaintiffs”) — filed suit in the United States District Court for the Middle District of Louisiana, alleging that LSU had violated and continued to violate Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688 (1994) (“Title IX”), and the Equal Protection Clause of the United States Constitution by denying them equal opportunity to participate in intercollegiate athletics, equal opportunity to compete for and to receive athletic scholarships, and equal access to the benefits and services that LSU provides to its varsity intercollegiate athletes, and by discriminating against women in the provision of athletic scholarships and in the compensation paid coaches. The Pederson Plaintiffs sought declaratory, injunctive, and monetary relief on behalf of themselves and all those similarly situated. The defendants to the action included LSU, Athletic Director Joe Dean (in his individual and official capacities) (“Dean”), Chancellor William E. Davis (in his individual and official capacities) (“Davis”), and the individual members of the LSU Board of Supervisors (in their official ca-pacifies only) (collectively, “Appellees”). Subsequently, plaintiffs Cindy and Karla Pineda (“Pineda Plaintiffs” and, together with Pederson Plaintiffs, “Appellants”) sought to intervene in the original action. The motion to intervene was denied, and the Pineda Plaintiffs filed suit on behalf of themselves and a class of those similarly situated in the Eastern District of Louisiana on January 3, 1995. Appellees transferred the Pineda action to the Middle District of Louisiana and moved to consolidate the Pineda action with the Pederson action. The district court granted the motion, and Appellants filed an amended complaint merging the actions. In the course of the litigation, the district court denied Appellants’ motions for preliminary injunctions. On September 14, 1995, it granted Appellees’ motion for partial summary judgment, dismissing for lack of standing Appellants’ claims for equal treatment in the areas of coaches’ salaries, budgets, facilities, training, and travel, on the ground that Appellants could not demonstrate injury-in-fact related to existing varsity athletic programs in which they had never sought to participate. On the same date, the district court dismissed Appellants’ 42 U.S.C. § 1983 claims against defendants Davis and Dean in their individual capacities on the basis of qualified immunity, and also dismissed the remaining § 1983 and Fourteenth Amendment claims. The district court also entered an order provisionally certifying the following class: Those female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU’s failure to field teams in said female varsity athletics. The district court conducted trial on Appellants’ surviving claims from October 10, 1995, through November 8, 1995. On January 11, 1996, the district court entered an order decertifying the class because the numerosity requirement of Federal Rule of Civil Procedure 23(a) (“Rule 23(a)”) had not been met and because a class was not needed to obtain the requested relief. On January 12, 1996, the district court entered its opinion on the merits finding that Appellees were in violation of Title IX. See Pederson v. Louisiana State Univ., 912 F.Supp. 892, 917 (M.D.La.1996). The district court ruled, however, that Appel-lees did not intentionally violate Title IX and therefore would not be liable for monetary damages. The district court also dismissed the claims of the Pederson Plaintiffs for lack of standing. As a result of its finding that Appellees were in violation of Title IX, the district court ordered Appellees to submit a plan for compliance with the statute (the “Compliance Plan”). The Pederson Plaintiffs filed a notice of appeal on January 12, 1996 from the district court’s order. The notice of appeal encompassed all prior district court orders. On June 9, 1997, the Pineda Plaintiffs filed a notice of appeal from the district court’s May 9, 1997 order approving the Compliance Plan. The notice of the appeal encompassed all prior district court orders. On July 24, 1997, Appellants collectively filed a notice of appeal from the final judgment entered on July 1, 1997. In this consolidated appeal, Appellants challenge the district court’s decision to decertify the class, the district court’s conclusion that Appel-lees did not intentionally violate Title IX, the district court’s decision to dismiss the Pederson Plaintiffs’ claims for lack of standing, and the district court’s conclusion that Appellants lacked standing to pursue their claims alleging a lack of equal treatment in existing LSU varsity sports. Prior to the entry of final judgment against Appellees, the Supreme Court decided Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In their answer to both complaints, Appel-lees had pled the affirmative defense of Eleventh Amendment immunity. In light of Seminole Tribe, Appellees filed a Rule 12(b)(1) motion to dismiss on May 14,1996, contending that Eleventh Amendment sovereign immunity deprived the court of subject matter jurisdiction. On March 4, 1997, the district court denied Appellees’ motion. On March 19,1997, Appellees filed a notice of appeal of the district court’s denial of their 12(b)(1) motion. On June 9, 1997, Appellees appealed from the district court’s May 9, 1997 order approving the Compliance Plan. The notice of appeal encompassed all of the district court’s earlier rulings, including the district court’s finding that LSU is or was in violation of Title IX. On July 7, 1997, Appellees filed another notice of appeal from the final judgment entered on July 1, 1997. On appeal, Ap-pellees challenge the district court’s denial of their 12(b)(1) motion to dismiss, the district court’s conclusion that Appellees were in violation of Title IX, and the district court’s ordered injunctive relief on the ground that it is overbroad. II. Jurisdiction We begin our analysis by determining our jurisdiction to entertain these appeals. We must address the jurisdictional issues of standing, mootness, state sovereign immunity, and class certification; we address these issues in no particular order. We proceed, first, by reviewing the district court’s decision to decertify the class it provisionally certified on September 14, 1995. Next, with regard to standing, we determine whether the district court correctly determined that the Pederson Plaintiffs lacked standing to pursue their claims and whether it correctly determined that Appellants lacked standing to pursue their claims of unequal treatment in existing varsity sports at LSU. Third, we examine Appellees’ contentions regarding mootness. Finally, we determine whether the doctrine of sovereign immunity bars suit in this case. A. Class Decertification We review a district court’s class certification decisions for abuse of discretion. See Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir.1993); Merrill v. Southern Methodist Univ., 806 F.2d 600, 607 (5th Cir.1986). “[T]he district court maintains great discretion in certifying and managing a class action. We will reverse a district court’s decision to certify a class only upon a showing that the court abused its discretion, or that it applied incorrect legal standards in reaching its decision.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.1999). The decision to decertify a provisionally certified class is a class certification decision and, as such, is reviewed for abuse of discretion. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir. 1995); Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir.1986). In the district court, Appellants sought to certify the class of “all LSU women students enrolled at any time since February, 1993 or who seek to enroll or become enrolled during the course of this litigation and who seek or have sought to participate and or were deterred from participating in varsity intercollegiate athletics funded by LSU.” Memorandum Ruling of Jan. 12, 1996, at 1. On September 14, 1995, the district court provisionally certified the -class of “[tjhose who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU’s failure to field teams in said female varsity athletics.” Id. at 4. At that time, the district court voiced its concern that the numerosity requirement of Rule 23(a) had not been met. The court stated: provisional certification will require plaintiffs, before judgment is rendered, to further support their assertion that the joinder of potential class members is impracticable.... In particular this Court is concerned that plaintiffs cannot show that one major argument on nu-merosity is causally weak, i.e. whether women who participate in intermurals [sic] at LSU would have the ability or interests to compete at the varsity level at LSU. Memorandum Ruling of Sept. 14, 1995, at 10-11. Following the close of evidence at trial, both sides briefed the issue of numer-osity. Ultimately, the district court decertified the provisional class. See Memorandum Ruling of Jan. 12, 1996, at 8-9. It stated that it had “cautioned plaintiffs’ counsel in its original ruling that the evidence presented on numerosity was not sufficient to uphold a class certification and granted plaintiffs the opportunity to bolster that information. [It] remain[ed] unconvinced that such numerosity exists.” Id. at 4-5. Appellants challenge the decertification of the putative class. It is important for our purposes to recognize that Appellants do not challenge the district court’s redefinition of the putative class; they merely challenge the district court’s decision to decertify the redefined class. The precise question before us, therefore, is whether the district court abused its discretion when it decertified, on the grounds of lack of numerosity and lack of necessity, the class of “[t]hose female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU’s failure to field teams in said female varsity athletics.” Memorandum Ruling of Jan. 12,1996, at 4. Appellants’ major contention appears to be that the evidence presented at trial clearly satisfied the numerosity requirement and that the district court’s decer-tification order, therefore, erroneously assessed that evidence. Appellants also attack the district court’s failure to make specific findings of fact in its memorandum ruling decertifying the putative class. See Appellants’ Brief at 34-35 (“Although the District Court (contrary to Rules 23 and 52) made no factual findings supporting its holding as to nu-merosity, the trial evidence clearly established the numerosity element.”). The district court made clear that its decertification decision, in all aspects relevant to this discussion, rested on Appellants’ inability to satisfy the numerosity requirement. Moreover, in its September 14, 1995, Memorandum Ruling, the district court explained that Appellants had failed to provide evidence that members of the intramural and club teams had the desire or ability to compete at the varsity level. Appellants are correct, however, that the district court failed to identify specific findings of fact to support its conclusion that the numerosity requirement had not been met. Both parties briefed the nu-merosity issue following the close of evidence at trial. These briefs detailed the evidence in favor of and against a conclusion that the numerosity prong of Rule 23(a) had been satisfied. This same evidence is reiterated in the briefs prepared on appeal. At trial, Appellants established that a number of current LSU female students had a desire to try out for varsity soccer or fast-pitch softball. Appellees admit that eight people showed up for varsity soccer tryouts. These eight, however, do not constitute the sum total of class members. The class consists of all “female students enrobed at LSU since 1993 and any time thereafter” who wish to participate. Plaintiffs estabhshed that, around the time of trial, well over 5,000 young women were playing soccer or fast-pitch softball at the high school level in Louisiana. They also established that many former members of a Baton Rouge soccer club received scholarships to play intercollegiate soccer. As Appellees point out, these women, because they are not students at LSU, are not members of the putative class. However, considering the talent pool in Louisiana established by these figures and the number of LSU students who come from Louisiana, Appellants have established that numerous future female LSU students will desire to try out for varsity soccer and fast-pitch softball. To satisfy the numer-osity prong, “a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Zeidman v. J. Ray McDer-mott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981). The evidence presented brings Appellants’ assertions as to numerosity beyond the “mere allegation that the class is too numerous to make joinder practicable” which, by itself, is insufficient. Fleming v. Travenol Laboratories, Inc., 707 F.2d 829, 833 (5th Cir.1983). Our independent review of the record satisfies us that the numerosity prong has been satisfied. Because the district court failed to identify specific findings that led it to conclude that the numerosity prong had not been satisfied, we can only conclude that its assessment of the evidence was clearly erroneous and, therefore, that it abused its discretion in declining finally to certify the putative class on the ground of lack of numerosity. Accordingly, we vacate the district court’s decertification order. It has been over four years since the district court provisionally certified the class at issue. While we have determined that the district court abused its discretion in decertifying the class on the grounds of numerosity and, possibly, lack of need, this court is not as well situated as the district court to determine whether the putative class should now finally be certified given all other considerations that go into a class certification decision. Upon remand, therefore, the district court should reconsider final class certification in light of this opinion and all other class certification considerations, including the adequacy as a representative of any person who hereafter comes forward to represent the class. B. Standing The district court ruled that the Peder-son Plaintiffs lacked standing to bring suit for violations of Title IX and that all Appellants lacked standing to challenge LSU’s existing varsity program. We review each ruling in turn. 1. Legal Principles “Jurisdictional questions are questions of law, and thus reviewable de novo by this Court.... If the district court resolves any factual disputes in making its jurisdictional findings, the facts expressly or impliedly found by the district court are accepted on appeal unless the findings are clearly erroneous.” In the Matter of the Complaint of Tom-Mac, Inc., 76 F.3d 678, 682 (5th Cir.1996) (internal citations omitted). “A question of standing raises the issue of whether the plaintiff is entitled to have the court decide the merits of the dispute or of particular issues. Standing is a jurisdictional requirement that focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Cook v. Reno, 74 F.3d 97, 98-99 (5th Cir.1996) (internal quotations and footnotes omitted). To have standing, a plaintiff must establish three elements: First, the plaintiff must show that it has suffered an injury in fact — a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. Second, the plaintiff must establish causation — a fairly traceable connection between the plaintiffs injury and the complained — of conduct of the defendant. Lastly, there must be redressability — a likelihood that the requested relief will redress the alleged injury. Sierra Club v. Peterson, 185 F.3d 349, 360 (5th Cir.1999). Additionally, courts have refused to adjudicate cases that raise only generalized grievances. “A generalized grievance is a harm shared in substantially equal measure by all or a large class of citizens. The prudential principle barring adjudication of generalized grievances is closely related to the constitutional requirement of personal injury in fact, and the policies underlying both are similar.” Walker v. Mesquite, 169 F.3d 973, 979 n. 16 (5th Cir.1999) (internal citations and quotation marks omitted). Finally, the doctrine of standing is distinguishable from that of mootness. The Supreme Court has acknowledged “mootness as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363,1384 (1973)). 2. Pederson Plaintiffs The district court determined that the Pederson Plaintiffs — Pederson, Ollar, and Clark' — lacked standing to bring claims for equitable or declaratory relief. With regard to Ollar and Clark, the court found that they “were ineligible to compete in intercollegiate athletics after May, 1995 under the regulations of the National Collegiate Athletic Association [ (‘NCAA’) ].” Pederson, 912 F.Supp. at 907. The court found that Pederson retained NCAA eligibility and had made the team, but she quit the team for financial reasons and was, at the same time, cut from the team due to a lack of skill. Id. at 907 & n. 34. The court further found that LSU had no men’s varsity soccer team and that it provided men and women the same opportunity to participate in club soccer. Finally, the court found that the Pederson Plaintiffs did not establish the ability to play soccer above the club level and that they did not establish the interest or ability to play any sport other than soccer. The court therefore concluded that “LSU’s alleged violation of Title IX by not providing additional athletic opportunity to its female students in no way personally impacted'these three plaintiffs.” Id. at 907. Absent any personal impact, the court determined that the Ped-erson Plaintiffs lacked standing and dismissed their claims. The district court failed appropriately to evaluate the Pederson Plaintiffs’ standing. First, the district court addresses each plaintiffs NCAA eligibility at the time of trial. Eligibility at the time of trial, however, implicates mootness; it has no bearing on the particular litigant’s standing at the time the suit was filed , Second, the district court’s conclusion that LSU provided men and women the same opportunities to play soccer and that, therefore, LSU’s Title IX violation did not impact the Pederson Plaintiffs reaches the merits of the Pederson Plaintiffs’ effective accommodation claim. The Pederson Plaintiffs claim that LSU, by failing to field a women’s varsity soccer team, ineffectively accommodated the interests and abilities of female students at the school. Whether or not the Pederson Plaintiffs produced evidence at trial sufficient to establish this alleged violation is the very heart of the matter in their case and does not implicate standing. Standing requires alleged misconduct, not proven misconduct. To the extent that the district court reached the merits of the Pederson Plaintiffs’ claims in its opinion, we remark only that “[i]t is inappropriate for the court to focus on the merits of the case when considering the issue of standing.” Hanson v. Veterans Admin., 800 F.2d 1381, 1385 (5th Cir.1986). Third, the district court misconceived the level of injury necessary to establish standing in this area. The district court’s focus on the ability of each Pederson Plaintiff to secure a position on the varsity soccer team was misplaced. This inquiry will be appropriate in the determination of damages during Stage II. If the Pederson Plaintiffs have standing and succeed on their violation claims, then each plaintiffs ability to secure a position on the unfielded varsity soccer team during the period of the violation is a factor to consider in assessing damages. Of course, each plaintiffs ability to secure a position will be impacted both by skill and NCAA eligibility. The findings of the district court, therefore, do not help to determine whether the Pederson Plaintiffs have standing to challenge LSU’s effective accommodation under Title IX, i.e., whether they met the minimum standing requirements at the time they instituted this suit. We are unaware of, nor does either party point to, precedent delineating the precise level of injury a litigant must demonstrate to establish standing to assert a claim under Title IX for ineffective accommodation. Clearly, the alleged misconduct here is LSU’s failure to field a varsity soccer team in violation of Title IX. The remedies sought are both monetary and injunctive. As a general matter, injury in fact is the “invasion of a legally protected interest.” Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). The difficult question, then, is whether there is, in this case, any legally protected interest actually violated or in imminent danger of being violated that is fairly traceable to the alleged misconduct and from which the Pederson Plaintiffs will likely obtain relief as a result of a favorable ruling. The district court seems to require that the Pederson Plaintiffs allege the injury of being denied the opportunity to compete on a specific varsity team. It follows from this reasoning that a determination that a plaintiff would not have made the specific varsity team, even had it existed, defeats her standing because she fails to demonstrate sufficient injury. The district court requires too much. Our decision here is informed on two fronts. First, we find the case of Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999) supportive. There, members of the club lacrosse and softball teams brought suit for violation of Title IX. Neither the district court nor the Court of Appeals for the Second Circuit discussed whether any of the students possessed the skills necessary to make one of the unfielded varsity teams. Nonetheless, the Second Circuit, after dismissing their equal treatment claims for lack of standing, never even questioned their standing to bring effective accommodation claims. See id. at 120. Second, we find the Supreme Court’s Equal Protection jurisprudence instructive. In the context of set-aside programs, the Court has stated: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the “injury in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party challenging a set-aside program ... need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis. Northeastern Florida, 508 U.S. at 666, 113 S.Ct. 2297 (citations omitted). Violating Title IX by failing to field women’s varsity teams that effectively accommodate the interests and abilities of the university community certainly creates a barrier for female students. In much the same way as set-aside programs, the injury here results from the imposed barrier-the absence of a varsity team for a position on which a female student should be allowed to try out. We hold, therefore, that to establish standing under a Title IX effective accommodation claim, a party need only demonstrate that she is “able and ready” to compete for a position on the unfielded team. The Pederson Plaintiffs have certainly established standing in this case. They all participated in club soccer, and, indeed, Pederson actually competed for a spot on the team once it was fielded. Whether or not they have proved sufficiently their claims on the merits, however, is for the district court to decide. The district court’s conclusion that Appellees violated Title IX by failing to field a women’s varsity fast-pitch softball team does not compel a conclusion that they likewise violated Title IX by failing to field a women’s varsity soccer team. Upon remand, the district court should determine, prior to proceeding to Stage II, the merits of the Pederson Plaintiffs’ claim. 3. Unequal Treatment Claims Appellants also challenge the district court’s determination that they did not have standing to challenge LSU’s entire varsity athletic program as it then existed, including the allocation of scholarships and other benefits to varsity athletes. They argue that the district court should not have dismissed their claims for declaratory and injunctive relief with respect to women’s varsity basketball, volleyball, track, tennis, golf, gymnastics, and swimming because they have individually sustained the requisite injury necessary to address the operation of LSU’s athletic program as a whole, and because limiting the inquiry to specific teams contradicts the policies of Title IX as well as traditional notions of fairness. The district court found that Appellants had standing to challenge the lack of effective accommodation but not the denial of equivalence in other athletic benefits. Ap-pellees defend the district court’s conclusion on the ground that persons who never participated in intercollegiate athletics have no standing to challenge the treatment of existing athletes. We agree with the district court that Appellants lack standing to challenge the alleged unequal treatment of varsity athletes at LSU. At the time of trial, no named plaintiff was a member of a varsity team. Moreover, the class that Appellants seek to represent includes women injured by LSU’s failure to field teams for certain sports. Standing to challenge effective accommodation does not automatically translate into standing to challenge the treatment of existing varsity athletes. See Boucher, 164 F.3d at 116 (“The [district] court held that since none of the named plaintiffs were varsity athletes, they did not have standing to assert the equal treatment claims. Its ruling on this issue was proper and we affirm the dismissal of plaintiffs’ equal treatment claims _”). Because we agree substantially with the reasoning set forth by the district court in its September 14, 1995, Memorandum Ruling, for further explanation we rely on the district court’s discussion. C. Mootness Appellees insist, at several points throughout their brief, that issues presented are moot as to the named plaintiffs and the class. Appellants seem to agree with this assertion, as least in relation to the injunctive claims asserted by the named plaintiffs. In their brief, Appellants state, “[The Pineda Plaintiffs’] graduation would render the issue [of injunctive relief] moot and thereby alleviate the requirement that LSU maintain a women’s softball team .... ” Appellants’ Brief at 45. As to the class, Appellees assert that the district judge’s order was “essentially class relief.” Appellees’ Brief at 76. They fault Appellants for failing to “argue in their brief that the compliance plan ordered by the District Court is deficient or that the plan does not bring LSU into compliance with respect to Title IX’s effective accommodation requirements for participatory opportunities.” Id. at 77. The gist of Appellees’ argument is that the district court, in effect, ordered class relief; Appellants do not contest that relief; therefore, any class claims for injunctive relief are moot. Appellees rely on Locke v. Board of Public Instruction, 499 F.2d 359 (5th Cir. 1974), for the proposition that the district court’s acceptance of their Compliance Plan moots the class claims. In that case, a teacher sued her school district for race and sex discrimination surrounding her maternity leave. Before oral argument on appeal, the maternity policy was changed and Locke was transferred, at her own request, into a teaching position that she found satisfactory. We noted there that “in her original complaint the only relief sought by Mrs. Locke other than money damages was an injunction restraining the school system from implementing its present leave policy against the plaintijf in a discriminatory manner.” Id. at 363 (emphasis added). We went on to explain: It is clear from the facts before us ... that the plaintiff herein has now been satisfied as to her request for a job complete with supplemental work and pay. The counsel for the school board ... has assured this court that the school board always had, and still maintains, good will toward Mrs. Locke. Furthermore, it is clear that the school board has done everything within its power to comply with Mrs. Locke’s wishes within the limitations placed upon the board by the various federal orders and mandates. This court is aware ... that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the cases, i.e., does not make the case moot. But, the mootness in this case ... depends not at all upon a voluntary cessation of activity, but rather depends on the simple fact that Mrs. Locke’s wishes have been complied with and it is a matter of record that the school board is complying with the various federal mandates and orders as to integration of its school system. Even though ... it could be argued that this is a question that is capable of repetition, here, ... that is not possible. The maternity leave policy allegedly forced on Mrs. Locke is no longer in existence, a new one having taken its place on December 12, 1972. Mrs. Locke will never again be forced to comply with that leave policy. Id. at 364 (internal quotation marks and citations omitted). Finally, we concluded that “although this matter has generated public concern, the nature of the case itself we find is that of a single individual alleging infringement of her rights. This does not make the dispute one of ‘general public interest’ requiring a decision even if many attributes of mootness exist.” Id. at 366. Appellants here have consistently maintained that the alleged Title IX violation impacts not only themselves, but many women at LSU. Furthermore, the fact that the district court ordered a Compliance Plan demonstrates that the issues here go far beyond the impact of the alleged violations on the named plaintiffs. Finally, Ap-pellees have failed to show the same dedication to accommodating the desires of Appellants that the school district in Locke demonstrated. Locke was rightly decided, but, without intending to put too fine a point on it, it is on all counts not the case before us today. This appeal raises three merit-based questions. Appellees argue that the district court erred in its conclusion that LSU violated Title IX. Appellants argue that the district court erred in finding that Appellees did not discriminate intentionally. Finally, Appellees argue that the district court’s Compliance Plan requirements were overly broad. The Title IX violation question is necessarily antecedent to the issue of intentional discrimination, and the intentional discrimination issue, as discussed infra, implicates Appellants’ damages claim. The Compliance Plan question deals with the injunctive relief prayed for by Appellants. “Justiciability must be analyzed separately on the issues of money damages and the propriety of equitable relief.” Henschen v. City of Houston, 959 F.2d 584, 587 (5th Cir.1992). We, therefore, analyze separately the mootness of the injunctive claims and the damages claims. Furthermore, we examine mootness as to the named plaintiffs and the putative class. “The starting point for analysis is the familiar proposition that ‘federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.’ ” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). 1. Injunctive Relief In the present case, Appellants have all graduated from LSU. Even assuming that any one of them retains any NCAA eligibility at this point, they have not argued that there is any likelihood that any of them will return to LSU and attempt to play varsity sports. As is so often the case in suits for injunctive relief brought by students, graduation or impending graduation renders their claims for injunctive relief moot. See Id. at 319-20, 94 S.Ct. 1704; Sapp v. Renfroe, 511 F.2d 172, 175 (5th Cir.1975). Because the named plaintiffs will not benefit from a favorable ruling on the question implicating injunctive relief, we hold that this question is moot as to them. The issue of injunctive relief, however, is not moot as to the putative class. Appellees argue that the district court’s effective class relief and their compliance with Title IX, based upon a plan entered into before this litigation began, renders the issue of injunctive relief moot as to the putative class as well. Contrary to Appellees’ assertions, it is well established that the voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. But jurisdiction, properly acquired, may abate if he case becomes moot because (1) it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. The burden of demonstrating mootness is a heavy one. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal citations and quotation marks omitted). In this ease, Appellees bear the burden of demonstrating that “ ‘there is no reasonable expectation that the wrong will be repeated.’ ” ACLU v. Finch, 638 F.2d 1336, 1346 (5th Cir.1981) (quoting United States v. W.T. Grant, 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Appellees have faded to meet this burden. They have made no representation to this court that they are dedicated to ensuring equal opportunities and fair accommodation for both their female and male athletes in the long run. They simply state that they have instituted varsity women’s fast-pitch softball and soccer and that they have, as required, submitted a Compliance Plan to the district court. Ap-pellees have given no assurance that they will not disband these programs, as they have with varsity fast-pitch softball in the past. In its May 9, 1997, order, the district court, although speaking highly of LSU’s turnaround in the area of effective accommodation, nonetheless required periodic reporting for several years. We will not second guess the district court’s reasoned judgment by declaring this issue moot when Appellees have failed to demonstrate that their Title IX effective accommodation violations will not recur. We do not think, however, that the voluntary cessation exception applies equally to the individual Appellants. Even were LSU to resume its illegal activity, Appellants, because of their graduation, would be unaffected. The question of injunctive relief is therefore, as stated supra, rendered moot as to the named plaintiffs. 2. Monetary Relief Finally, Appellants’ damages claim is not moot. The district court held that, with regard to the Pineda Plaintiffs, and we have remanded for a determination whether, with regard to the Pederson Plaintiffs, LSU violated the individual rights of each named plaintiff by failing to accommodate effectively the interests and abilities of female students. Appellees contest the district court’s holding. Appellants assert that LSU intentionally discriminated against women. If these questions on. appeal are answered in Appellants’ favor, then to the extent that LSU’s violations caused a named plaintiffs actual damages, that person is entitled to be compensated for those damages. A live controversy, therefore, exists with regard to the damages claim, and the legal questions underlying that claim are not moot. See Henschen, 959 F.2d at 588. D. Sovereign Immunity Appellees contend that the district court lacked subject matter jurisdiction to consider Appellants’ claims because Appellees are immune from suit pursuant to the Eleventh Amendment. Appellants, and the United States as Intervenor, counter that the Eleventh Amendment does not bar Appellants’ suit because (1) Congress validly abrogated the States’ Eleventh Amendment immunity for purposes of Title IX, (2) LSU waived its Eleventh Amendment immunity when it accepted federal funding for its educational institutions, or (3) jurisdiction properly lies under the doctrine of Ex Parte Young. The district court held that Eleventh Amendment immunity did not deprive the court of subject matter jurisdiction. See 912 F.Supp. at 901. The district court’s ruling on Appellees’ Eleventh Amendment immunity is subject to de novo review. See Seminole Tribe v. Florida, 11 F.3d 1016, 1021 (11th Cir.1994), aff'd, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In order to abrogate a State’s sovereign immunity, Congress must (1) have “unequivocally expressed] its intent to abrogate the immunity,” and (2) have “acted pursuant to a valid exercise of power.” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (internal quotations omitted). There is no dispute that Congress unequivocally has expressed its intent to abrogate the States’ sovereign immunity in the context of Title IX. In response to Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), Congress enacted the Civil Rights Remedies Equalization Act (“CRREA”) as part of the Rehabilitation Act Amendments of 1986, § 1003, Pub.L. No. 99-506, 100 Stat. 1845 (codified at 42 U.S.C. § 2000d-7). Section 2000d-7 provides: 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, 42 U.S.C. § 6101 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance. 42 U.S.C. § 2000d-7(a)(l) (some internal citations omitted). Thus, the only issue is whether Congress acted pursuant to a valid exercise of power when abrogating the States’ immunity. See Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114 (“Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?”). The Fourteenth Amendment is recognized to be such a power. See id.; Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (finding that, because the Fourteenth Amendment expanded federal power at the expense of state power, the Fourteenth Amendment extended federal power into the province of the Eleventh Amendment and, therefore, § 5 of the Fourteenth Amendment allows Congress to abrogate the immunity of the Eleventh Amendment). Formerly, the Interstate Commerce Clause, see U.S. CONST, art I, § 8, cl. 3, was also recognized to be such a power. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (plurality opinion) (holding that the power to regulate interstate commerce would be “incomplete without the authority to render States liable in damages”). Seminole Tribe, which involved the Indian Commerce Clause, overruled Union Gas. See Seminole Tribe, 517 U.S. at 63, 72-73, 116 S.Ct. 1114 (finding “no principled distinction ... to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause,” and holding that the Eleventh Amendment restricts judicial power under Article III, and Article I powers cannot be used to circumvent constitutional limitations). After Seminole Tribe, then, legislation passed pursuant to Congress’s Article I powers cannot validly abrogate the States’ sovereign immunity. Appellees contend that Title IX is Spending Clause legislation, and that therefore Congress does not have the authority after Seminole Tribe to abrogate the States’ Eleventh Amendment immunity when acting pursuant to the Spending Clause. Appellants respond that Title IX can also be justified as an exercise of Congress’s power pursuant to Section 5 of the Fourteenth Amendment, and that Congress can, after Seminole Tribe, abrogate the States’ Eleventh Amendment immunity when acting pursuant to Section 5 of the Fourteenth Amendment. We must first decide whether Title IX is merely Spending Clause legislation, or whether it can also be supported by Section 5 of the Fourteenth Amendment. This court, in Lesage v. Texas, 158 F.3d 213 (5th Cir.1998), rev’d on other grounds, — U.S.-, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999), held that Congress validly abrogated the States’ Eleventh Amendment immunity for purposes of Title VI of the Civil Rights Act of 1964 by enacting CRREA, 42 U.S.C. § 2000d-7(a)(1). In response to arguments that Title VI was enacted pursuant to the Spending Clause rather than Section 5 of the Fourteenth Amendment and that Congress therefore could not validly abrogate the States’ Eleventh Amendment immunity for purposes of Title VI, we stated that the subjective intent of the legislators in enacting legislation is irrelevant: In evaluating the constitutionality of a statute, we simply ask if Congress sufficiently articulated an abrogation of state sovereign immunity and if it had the power to do so .... This is an entirely objective inquiry, for “[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Id. at 217 (quoting EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983)) (citations and further internal quotations omitted). Lesage supports the proposition that, even if Congress stated that it was acting pursuant to the Spending Clause in enacting Title IX, if Congress could have acted pursuant to Section 5 of the Fourteenth Amendment, Congress has the authority to abrogate for purposes of Title IX. See id. at 217-18; see also Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.1997) (“The resolution of defendants’ contention therefore turns on whether Congress, as an objective matter, could have enacted Title IX pursuant to § 5 of the Fourteenth Amendment.”). Moreover, as the Lesage court recognized, “it is the statute abrogating immunity, not the particular substantive provision of the statute, which specifically concerns us.” Lesage, 158 F.3d at 218. Because § 2000d-7, the provision which abrogated the States’ Eleventh Amendment immunity for purposes of both Title VI and Title IX, was enacted pursuant to Section 5 of the Fourteenth Amendment, the Lesage court found that Congress had validly abrogated the States’ Eleventh Amendment immunity. See id. at 218-19. This reasoning supports the conclusion that Congress had the authority to abrogate the States’ Eleventh Amendment immunity for purposes of Title IX — either because Title IX could have been enacted pursuant to Section 5 of the Fourteenth Amendment, see Crawford, 109 F.3d at 1283 (“[W]e are unable to understand how a statute enacted specifically to combat [gender] discrimination could fall outside the authority granted to Congress by § 5.”), or because the legislation actually abrogating the States’ immunity, § 2000d-7, was enacted pursuant to Section 5, see Lesage, 158 F.3d at 218-19. Other circuits have similarly concluded that Congress validly abrogated the States’ Eleventh Amendment immunity for purposes of Title IX. In Crawford v. Davis, 109 F.3d 1281 (8th Cir.1997), the court held that Title IX could be justified by Section 5 of the Fourteenth Amendment, even if Congress did not explicitly state that it was acting pursuant to its Section 5 authority, and therefore Title IX validly abrogated the States’ immunity. See id. at 1283. In Doe v. University of Illinois, 138 F.3d 653 (7th Cir.1998), the court similarly found that Title IX could be justified by Section 5 of the Fourteenth Amendment, and that Congress’s abrogation of the States’ Eleventh Amendment immunity was therefore valid. See id. at 660; accord Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360, 363 (6th Cir.1998) (holding that Congress validly abrogated Eleventh Amendment immunity for purposes of Title IX because Congress had authority pursuant to Section 5 of the Fourteenth Amendment to enact Title IX); cf. Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 838-39 (6th Cir.1997) (stating that it is not necessary for Congress to say explicitly which constitutional provision it is relying upon, and concluding that the Equal Pay Act was enacted pursuant to Section 5 of the Fourteenth Amendment). Notwithstanding our conclusion that Title IX validly abrogates the States’ sovereign immunity, we pause to address two recent decisions of the Supreme Court, handed down after oral argument in this case, which speak to abrogation issues in the area of Eleventh Amendment sovereign immunity. Appellees have submitted them to us as support for their contention that the instant suit be dismissed under the Eleventh Amendment. In the first, College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), the Court held that legislation under § 5 of the Fourteenth Amendment must be confined to enforcement of the Amendment’s other provisions by legislation that remedies or prevents constitutional violations. In College Savings Bank, Petitioner argued that the Trademark Remedy Clarification Act (“TRCA”) was designed to remedy and to prevent state deprivations of two property interests without due process of law, but the Court held that the asserted property interests — the right to be free from a business competitor’s false advertising about its own product and the right to be secure in one’s business interests — did not qualify as protected property rights. In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), the Court both reaffirmed its holding in Seminole Tribe that Congress may not rely on Article I powers — here, the Commerce Clause and the Patent Clause — to abrogate sovereign immunity and extended the principle of College Savings Bank to cover actions against states under the Patent and Plant Variety Protection Remedy Clarification Act. Specifically, the Court in Florida Prepaid held that abrogation under § 5 is invalid where it cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment’s Due Process Clause. In order to enact “appropriate” legislation under the remedial power of § 5, see City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), Congress must identify conduct transgressing the Fourteenth Amendment’s substantive provisions and must tailor its legislative scheme to remedy or to prevent such conduct; unremedied patent infringement by the States did not meet the test of City of Boeme and could not, therefore, validly abrogate immunity. We believe it beyond peradventure that Title IX meets the test first explained in Seminole Tribe and recently clarified by College Savings Bank and Florida Prepaid. Congress expressed a clear intent to abrogate immunity with CRREA, and that Act was appropriately passed under Congress’s § 5 power to remedy past discrimination. As such, it was appropriate legislation itself and its goal — protecting the reach of Title IX and other similar statutes — was, by extension, also appropriate. III. Title IX We now turn to the merits of this dispute, and we will address the underlying issues in Parts III and IV of this opinion. In this Part, we affirm the district court’s judgment that LSU violated Title IX and reverse the district court’s judgment that LSU did not intentionally discriminate against women in the provision of athletics. A. Background Title IX proscribes gender discrimination in education programs or other activities receiving federal financial assistance. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 514, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Patterned after Title VI of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d (1994), Title IX, as amended, contains two core provisions. The first is a “program-specific” prohibition of gender discrimination: 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 .... § 901(a), 20 U.S.C. § 1681(a). The second core provision relates to enforcement. Section 902 of Title IX authorizes each agency awarding federal financial assistance to any education program to promulgate regulations “ensuring that aid recipients adhere to § 901(a)’s mandate.” North Haven, 456 U.S. at 514, 102 S.Ct. 1912. The “ultimate sanction” for noncompliance is termination of federal funding or the denial of future federal grants to the offending institution. Id. Like § 901, § 902 is program-specific: [SJuch termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding [of noncompliance] has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found .... § 902, 20 U.S.C. § 1682. Beginning in the mid-1970’s, the Department of Health, Education and Welfare, and its successor, the Department of Education, have relied on their § 902 power to promulgate regulations governing the operation of federally-funded education programs. These regulations encompass not only athletics policies, but also actions by funding recipients in the areas of, inter alia, admissions, textbooks, and employment. See, e.g., 34 C.F.R. §§ 106.21 (admissions), 106.42 (textbooks), 106.51 (employment) (1999). The regulation most pertinent to the instant controversy requires that No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. 34 C.F.R. § 106.41(a) (1999). The regulations further provide that A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors: (1)Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex. 34 C.F.R. § 106.41(c). B. Title IX Violation Appellees argue brazenly that the evidence did not demonstrate sufficient interest and ability in fast-pitch softball at LSU and that, therefore, they cannot be liable under Title IX. The heart of this contention is that an institution with no coach, no facilities, no varsity team, no scholarships, and no recruiting in a given sport must have on campus enough national-caliber athletes to field a competitive varsity team in that sport before a court can find sufficient interest and abilities to exist. It should go without saying that adopting this criteria would eliminate an effective accommodation claim by any plaintiff, at any time. In any event, the district court’s finding that the requisite level of interest existed is a finding of fact subject to review for clear error. Having reviewed the record, we determine that the district court did not clearly err because there was ample indication of an interest by women in fast-pitch softball. Appellees argue that the district court applied the wrong legal framework to assess Appellees’ liability by placing the evi-dentiary burden upon them to explain the reason for their 1983 decision to disband the women’s fast-pitch softball team. They argue for de novo review of that decision, but we agree with Appellants and the record supports that the district court considered all the evidence of interest and ability at LSU before concluding that Ap-pellees were in violation of Title IX, not merely the fact that LSU disbanded its team in 1983. Appellees would have us hold that, although the student population of LSU is 51% male and 49% female, the population participating in athletics is 71% male and 29% female. Given this breakdown, they argue that it is improper to consider proportionality, because to do so would be to impose quotas, and that the evidence shows that female students are less interested in participating in sports than male students. The law suggests otherwise. Title IX provides that the district court may consider disproportionality when finding a Title IX -violation: This subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in or receipt of the benefits of, any such program or activity by the members of one sex. 20 U.S.C. § 1681(b). LSU’s hubris in advancing this argument is remarkable, since of course fewer women participate in sports, given the voluminous evidence that LSU has discriminated against women in refusing to offer them comparable athletic opportunities to those it offers its male students. Nevertheless, Appellees persist in their argument by suggesting that the district court’s reliance on the fact that LSU fields a men’s baseball team as evidence of discrimination was improper because there is no requirement that the same sports be offered for both men and women and because LSU offers nine sports for women and only seven for men. We find that it was indeed proper for the district court to consider the fact that LSU fields a men’s baseball team while declining to field a comparable team for women despite evidence of interest and ability in fast-pitch softball at LSU. Appellees finally contest the district court’s determination that LSU’s decision to add fast-pitch softball apd soccer was not for the purpose of encouraging women’s athletics. They challenge the district court’s finding that LSU did not attempt to determine the interest and ability level of its female student population, contending that there is evidence in the record that shows that LSU does analyze the interest level of its female student athletes. Our review of the record demonstrates no such analysis on the part of LSU. The proper analytical framework for assessing a Title IX claim can be found in the Policy Interpretations to Title IX, which require an analysis of the disproportionality between the university’s male and female participation, the university’s history of expanding opportunities for women, and whether the university effectively accommodates the interests of its female students. See Title IX of the Education Amendments of 1972, Policy Interpretation, 44 Fed.Reg. 71,413, 71,414 (1979). Specifically, the Policy Interpretation explains that Title IX’s application to athletic programs covers three general subject areas: scholarships, equivalent treatment, and equal accommodation. See id. at 71,-415, 71,417. As a matter of law, a Title IX violation “may be shown by proof of a substantial violation in any one of the three major areas of investigation set out in the Policy Interpretation.” Roberts v. Colorado St Univ., 814 F.Supp. 1507, 1511 (D.Colo.) (emphasis added), affd in part & rev’d in part sub nom. Roberts v. Colorado St. Bd. of Agric., 998 F.2d 824 (10th Cir.1993). Credible evidence supports the conclusion that LSU failed all three prongs. Nevertheless, addressing merely the accommodation prong, regulations adopted by the Department of Education in 1997 also support the district court’s conclusions. See 34 C.F.R. § 106.37(c)(1) (providing that recipients that award athletic scholarships must do so with a view toward reasonable opportunities for such awards to members of both sexes); id. § 106.41(c)(1) (declaring that “[a] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes”); 45 C.F.R. § 86.41(c)(1) (requiring the consideration of “[wjhether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes”). Applying this framework, as the Supreme Court has indicated that we should, see Martin v.