In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
(VOLUME 2)

SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
MARK B. STERN
ALISA B. KLEIN
ANNE MURPHY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Nos. 96-1814, 96-2316

CHRISTY BRZONKALA, PLAINTIFF-APPELLANT

v.

VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY; ANTONIO J. MORRISON; JAMES LANDALE CRAWFORD,
DEFENDANTS-APPELLEES

AND

CORNELL D. BROWN; WILLIAM E. LANDSIDLE,
IN HIS CAPACITY AS COMPTROLLER OF THE COMMONWEALTH, DEFENDANTS

LAW PROFESSORS; VIRGINIANS ALIGNED AGAINST SEXUAL ASSAULT; THE ANTI-DEFAMATIONLEAGUE; CENTER FOR WOMEN POLICY STUDIES; THE D.C. RAPE CRISIS CENTER; EQUALRIGHTS ADVOCATES; THE GEORGETOWN UNIVERSITY LAW CENTER SEX DISCRIMINATIONCLINIC; JEWISH WOMEN INTERNATIONAL; THE NATIONAL ALLIANCE OF SEXUAL ASSAULTCOALITIONS; THE NATIONAL COALITION AGAINST DOMESTIC VIOLENCE; THE NATIONALCOALITION AGAINST SEXUAL ASSAULT; THE NATIONAL NETWORK TO END DOMESTIC VIOLENCE;NATIONAL ORGANIZATION FOR WOMEN; NORTHWEST WOMEN'S LAW CENTER; THE PENNSYLVANIACOALITION AGAINST DOMESTIC VIOLENCE, INCORPORATED; VIRGINIA NATIONAL ORGANIZATIONFOR WOMEN; VIRGINIA NOW LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED;WOMEN EMPLOYED; WOMEN'S LAW PROJECT; WOMEN'S LEGAL DEFENSE FUND; INDEPENDENTWOMEN'S FORUM; WOMEN'S FREEDOM NETWORK, AMICI CURIAE

UNITED STATES OF AMERICA,
INTERVENOR-APPELLANT

AND

CHRISTY BRZONKALA, PLAINTIFF

v.

ANTONIO J. MORRISON; JAMES LANDALE
CRAWFORD, DEFENDANTS-APPELLEES

AND

VIRGINIA POLYTECHNIC INSTITUTE AND STATE
UNIVERSITY; CORNELL D. BROWN; WILLIAM E. LANDSIDLE, IN HIS CAPACITY AS COMPTROLLEROF THE COMMOWEALTH, DEFENDANTS

LAW PROFESSORS; VIRGINIANS ALIGNED AGAINST SEXUAL ASSAULT; THE ANTI-DEFAMATIONLEAGUE;
CENTER FOR WOMEN POLICY STUDIES; THE D.C. RAPE CRISIS CENTER; EQUAL RIGHTSADVOCATES; THE GEORGETOWN UNIVERSITY LAW CENTER SEX DISCRIMINATION CLINIC;JEWISH WOMEN INTERNATIONAL; THE NATIONAL ALLIANCE OF SEXUAL ASSAULT COALITIONS;THE NATIONAL COALITION AGAINST DOMESTIC VIOLENCE; THE NATIONAL COALITIONAGAINST SEXUAL ASSAULT; THE NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONALORGANIZATION FOR WOMEN; NORTHWEST WOMEN'S LAW CENTER; THE PENNSYLVANIA COALITIONAGAINST DOMESTIC VIOLENCE, INCORPORATED; VIRGINIA NATIONAL ORGANIZATIONFOR WOMEN; VIRGINIA NOW LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED;WOMEN EMPLOYED; WOMEN'S LAW PROJECT; WOMEN'S LEGAL DEFENSE FUND; INDEPENDENTWOMEN'S FORUM; WOMEN'S FREEDOM NETWORK, AMICI CURIAE

[Argued: June 4, 1997]

[Decided: Dec. 23, 1997]

OPINION

Before: HALL, LUTTIG, and MOTZ, Circuit Judges.

DIANA GRIBBON MOTZ, Circuit Judge:

This case arises from the gang rape of a freshman at the Virginia PolytechnicInstitute by two members of the college football team, and the school'sdecision to impose only a nominal punishment on the rapists. The victimalleges that these rapes were motivated by her assailants' discriminatoryanimus toward women and sues them pursuant to the Violence Against WomenAct of 1994. She asserts that the university knew of the brutal attacksshe received and yet failed to take any meaningful action to punish heroffenders or protect her, but instead permitted a sexually hostile environmentto flourish; she sues the university under Title IX of the Education Amendmentsof 1972. The district court dismissed the case in its entirety. The courtheld that the complaint failed to state a claim under Title IX and thatCongress lacked constitutional authority to enact the Violence Against WomenAct. Because we believe that the complaint states a claim under Title IXand that the Commerce Clause provides Congress with authority to enact theViolence Against Women Act, we reverse and remand for further proceedings.

I.

Christy Brzonkala entered Virginia Polytechnic Institute ("VirginiaTech") as a freshman in the fall of 1994.1 On the evening of September21, 1994, Brzonkala and another female student met two men who Brzonkalaknew only by their first names and their status as members of the VirginiaTech football team. Within thirty minutes of first meeting Brzonkala, thesetwo men, later identified as Antonio Morrison and James Crawford, rapedher.

Brzonkala and her friend met Morrison and Crawford on the third floor ofthe dormitory where Brzonkala lived. All four students talked for approximatelyfifteen minutes in a student dormitory room. Brzonkala's friend and Crawfordthen left the room.

Morrison immediately asked Brzonkala if she would have sexual intercoursewith him. She twice told Morrison "no," but Morrison was not deterred.As Brzonkala got up to leave the room Morrison grabbed her, and threw her,face-up, on a bed. He pushed her down by the shoulders and disrobed her.Morrison turned off the lights, used his arms to pin down her elbows andpressed his knees against her legs. Brzonkala struggled and attempted topush Morrison off, but to no avail. Without using a condom, Morrison forciblyraped her.

Before Brzonkala could recover, Crawford came into the room and exchangedplaces with Morrison. Crawford also raped Brzonkala by holding down herarms and using his knees to pin her legs open. He, too, used no condom.When Crawford was finished, Morrison raped her for a third time, again holdingher down and again without a condom.
When Morrison had finished with Brzonkala, he warned her "You betternot have any fucking diseases." In the months following the rape, Morrisonannounced publicly in the dormitory's dining room that he "like[d]to get girls drunk and fuck the shit out of them."

Following the assault Brzonkala's behavior changed radically. She becamedepressed and avoided contact with her classmates and residents of her dormitory.She changed her appearance and cut off her long hair. She ceased attendingclasses and eventually attempted suicide. She sought assistance from a VirginiaTech psychiatrist, who treated her and prescribed anti-depressant medication.Neither the psychiatrist nor any other Virginia Tech employee or officialmade more than a cursory inquiry into the cause of Brzonkala's distress.She later sought and received a retroactive withdrawal from Virginia Techfor the 1994-95 academic year because of the trauma.

Approximately a month after Morrison and Crawford assaulted Brzonkala, sheconfided in her roommate that she had been raped, but could not bring herselfto discuss the details. It was not until February 1995, however, that Brzonkalawas able to identify Morrison and Crawford as the two men who had rapedher. Two months later, she filed a complaint against them under VirginiaTech's Sexual Assault Policy, which was published in the Virginia Tech "UniversityPolicies for Student Life 1994-1995." These policies had been formallyreleased for dissemination to students on July 1, 1994, but had not beenwidely distributed to students. After Brzonkala filed her complaint underthe Sexual Assault Policy she learned that another male student athletewas overheard advising Crawford that he should have "killed the bitch."

Brzonkala did not pursue criminal charges against Morrison or Crawford,believing that criminal prosecution was impossible because she had not preservedany physical evidence of the rape. Virginia Tech did not report the rapesto the police, and did not urge Brzonkala to reconsider her decision notto do so. Rape of a female student by a male student is the only violentfelony that Virginia Tech authorities do not automatically report to theuniversity or town police.

Virginia Tech held a hearing in May 1995 on Brzonkala's complaint againstMorrison and Crawford. At the beginning of the hearing, which was tapedand lasted three hours, the presiding college official announced that thecharges were being brought under the school's Abusive Conduct Policy, whichincluded sexual assault. A number of persons, including Brzonkala, Morrison,and Crawford testified. Morrison admitted that, despite the fact that Brzonkalahad twice told him "no," he had sexual intercourse with her inthe dormitory on September 21. Crawford, who denied that he had sexual contactwith Brzonkala (a denial corroborated by his suitemate, Cornell Brown),confirmed that Morrison had engaged in sexual intercourse with Brzonkala.

The Virginia Tech judicial committee found insufficient evidence to takeaction against Crawford, but found Morrison guilty of sexual assault. Theuniversity immediately suspended Morrison for two semesters (one schoolyear), and informed Brzonkala of the sanction. Morrison appealed this sanctionto Cathryn T. Goree, Virginia Tech's Dean of Students. Morrison claimedthat the college denied him his due process rights and imposed an undulyharsh and arbitrary sanction. Dean Goree reviewed Morrison's appeal letter,the file, and tapes of the three-hour hearing. She rejected Morrison's appealand upheld the sanction of full suspension for the Fall 1995 and Spring1996 semesters. Dean Goree informed Brzonkala of this decision in a letterdated May 22, 1995. According to Virginia Tech's published rules, the decisionof Dean Goree as the appeals officer on this matter was final.

In the first week of July 1995, however, Dean Goree and another VirginiaTech official, Donna Lisker, personally called on Brzonkala at her homein Fairfax, Virginia, a four-hour drive from Virginia Tech. These officialsadvised Brzonkala that Morrison had hired an attorney who had threatenedto sue the school on due process grounds, and that Virginia Tech thoughtthere might be merit to Morrison's "ex post facto" challenge thathe was charged under a Sexual Assault Policy that was not yet spelled outin the Student Handbook.2 Dean Goree and Ms. Lisker told Brzonkala thatVirginia Tech was unwilling to defend the school's decision to suspend Morrisonfor a year in court, and a re-hearing under the Abusive Conduct Policy thatpre-dated the Sexual Assault Policy was required. To induce Brzonkala toparticipate in a second hearing, Dean Goree and Ms. Lisker assured her thatthey believed her story, and that the second hearing was a mere technicalityto cure the school's error in bringing the first complaint under the SexualAssault Policy.

The Virginia Tech judicial committee scheduled the second hearing for lateJuly. This hearing turned out to be much more than a mere formality, however.The second hearing lasted seven hours, more than twice as long as the firsthearing. Brzonkala was required to engage her own legal counsel at her ownexpense. Moreover, the university belatedly informed her that student testimonygiven at the first hearing would not be admissible at the second hearingand that if she wanted the second judicial committee to consider this testimonyshe would have to submit affidavits or produce the witnesses. Because shereceived insufficient notice, it was impossible for Brzonkala to obtainthe necessary affidavits or live testimony from her student witnesses. Incontrast, the school provided Morrison with advance notice so that he hadample time to procure the sworn affidavits or live testimony of his studentwitnesses. Virginia Tech exacerbated this difficulty by refusing Brzonkalaor her attorney access to the tape recordings of the first hearing, whilegranting Morrison and his attorney complete and early access to those tapes.Finally, Virginia Tech officials prevented Brzonkala from mentioning Crawfordin her testimony because charges against him had been dismissed; as a resultshe had to present a truncated and unnatural version of the facts.

Nevertheless, after the second hearing, the university judicial committeefound that Morrison had violated the Abusive Conduct Policy, and re-imposedthe same sanction: an immediate two semester suspension. On August 4, 1995,the college again informed Brzonkala, in writing, that Morrison had beenfound guilty and been suspended for a year.

Morrison again appealed. He argued due process violations, the existenceof new information, and the asserted harshness and arbitrariness of thesanction imposed on him as grounds for reversal of the judicial committee'sdecision. Senior Vice-President and Provost Peggy Meszaros overturned Morrison'ssanction on appeal. She found "that there was sufficient evidence tosupport the decision that [Morrison] violated the University's Abusive ConductPolicy and that no due process violation occurred in the handling of [Morrison's]case." However, the Provost concluded that the sanction imposed onMorrison-immediate suspension for one school year-was "excessive whencompared with other cases where there has been a finding of violation ofthe Abusive Conduct Policy." Provost Meszaros did not elaborate onthe "other cases" to which she was referring. Instead of an immediateone year suspension, the Provost imposed "deferred suspension until[Morrison's] graduation from Virginia Tech." In addition, Morrisonwas "required to attend a one-hour educational session with Rene Rios,EO/AA Compliance Officer regarding acceptable standards under UniversityStudent Policy."

Provost Meszaros informed Morrison of the decision to set aside his sanctionby letter on August 21, 1995. Although Brzonkala had been informed in writingof the result at every other juncture in the disciplinary proceedings, VirginiaTech did not notify her that it had set aside Morrison's suspension or thathe would be returning to campus in the Fall. Instead, on August 22, 1995,Brzonkala learned from an article in The Washington Post that the universityhad lifted Morrison's suspension and that he would return in the Fall 1995semester. In fact, Morrison did return to Virginia Tech in the Fall of 1995-ona full athletic scholarship.

Upon learning that the university had set aside Morrison's suspension andwas permitting him to return in the Fall, Brzonkala canceled her own plansto return to Virginia Tech. She feared for her safety because of previousthreats and Virginia Tech's treatment of Morrison. She felt that VirginiaTech's actions signaled to Morrison, as well as the student body as a whole,that the school either did not believe her or did not view Morrison's conductas improper. She was also humiliated by the procedural biases of the secondhearing and by the decision to set aside the sanction against Morrison.Brzonkala attended no university or college during the Fall 1995 term.

On November 30, 1995, Brzonkala was shocked to learn from another newspaperarticle that the second Virginia Tech judicial committee did not find Morrisonguilty of sexual assault, but rather of the reduced charge of "usingabusive language." Despite the fact that the school had accused andconvicted Morrison of sexual assault at the initial hearing, despite Morrison'stestimony at that hearing that he had had sexual intercourse with Brzonkalaafter she twice told him "no," and despite the fact that DeanGoree and Donna Lisker had unambiguously stated that the second hearingwould also address the "sexual assault" charge against Morrison,the administrators altered the charge. The university never notified eitherBrzonkala or her attorney about the change, leaving her to learn about itmonths after the fact from a newspaper article.

Brzonkala believes and so alleges that the procedural irregularities in,as well as the ultimate outcome of, the second hearing were the result ofthe involvement of Head Football Coach Frank Beamer, as part of a coordinateduniversity plan to allow Morrison to play football in 1995.

On December 27, 1995, Brzonkala initially filed suit against Morrison, Crawford,and Virginia Tech; on March 1, 1996, she amended her complaint. She allegedinter alia that Virginia Tech, in its handling of her rape claims and failureto punish the rapists in any meaningful manner, violated Title IX of theEducation Amendments of 1972, 20 U.S.C. §§ 1681-1688 (1994). Shealso alleged that Morrison and Crawford brutally gang raped her becauseof gender animus in violation of Title III of the Violence Against WomenAct of 1994, 42 U.S.C. § 13981 (1994) ("VAWA"). The UnitedStates intervened to defend the constitutionality of VAWA.

On May 7, 1996 the district court dismissed the Title IX claims againstVirginia Tech for failure to state a claim upon which relief could be granted.See Brzonkala v. Virginia Polytechnic & State Univ., 935 F. Supp. 772(W.D. Va. 1996) ("Brzonkala I"). On July 26, 1996 the court dismissedBrzonkala's VAWA claims against Morrison and Crawford, holding that althoughshe had stated a cause of action under VAWA, enactment of the statute exceededCongressional authority and was thus unconstitutional. See Brzonkala v.Virginia Polytechnic & State Univ., 935 F. Supp. 779 (W.D. Va. 1996)("Brzonkala II").

II.

Title IX of the Education Amendments of 1972 provides in relevant part:

No person in the United States shall, on the basis of sex, be excluded fromparticipation in, be denied the benefits of, or be subjected to discriminationunder any education program or activity receiving Federal financial assistance.. . .

20 U.S.C. § 1681(a).

Virginia Tech concedes that it is an "education program . . . receivingFederal financial assistance." Hence, we need only determine whetherBrzonkala has stated a claim that she was "subjected to discrimination"by Virginia Tech "on the basis of sex." 20 U.S.C. § 1681(a).The district court recognized that Brzonkala pled a Title IX claim on thebasis of two distinct legal theories: a hostile environment theory, thatVirginia Tech responded inadequately to a sexually hostile environment;and a disparate treatment theory, that Virginia Tech discriminated againstBrzonkala because of her sex in its disciplinary proceedings.3 The districtcourt rejected both, holding that her complaint failed to state a TitleIX claim on which relief could be granted under either theory. See BrzonkalaI, 935 F. Supp. at 775-78. We now consider whether Brzonkala stated a claimunder either of these theories.

A.

We begin with the hostile environment claim.4 To assess Brzonkala's TitleIX hostile environment assertions we must address two issues: (1) what legalstandard to apply to a hostile environment claim under Title IX and (2)whether Brzonkala's complaint satisfies that standard.

1.

Title IX unquestionably prohibits federally supported educational institutionsfrom practicing "discrimination" "on the basis of sex."20 U.S.C. § 1681(a) (1994). Because of Title IX's "short historicalparentage," Doe v. Claiborne County, Tenn., 103 F.3d 495, 514 (6thCir. 1996), we have not previously faced a hostile environment claim underTitle IX. Therefore, in determining whether an educational institution'shandling of a known sexually hostile environment is actionable "discrimination"under Title IX, we must look to the extensive jurisprudence developed inthe Title VII context. See Preston v. Virginia ex rel. New River CommunityCollege, 31 F.3d 203, 207 (4th Cir. 1994) ("Title VII, and the judicialinterpretations of it, provide a persuasive body of standards to which wemay look in shaping the contours of a private right of action under TitleIX."); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10thCir. 1993) ("Title VII . . . is 'the most appropriate analogue whendefining Title IX's substantive standards. . . .'"); Lipsett v. Universityof P.R., 864 F.2d 881, 896 (1st Cir. 1988) ("Because Title VII prohibitsthe identical conduct prohibited by Title IX, i.e., sex discrimination"Title VII is "the most appropriate analogue when defining Title IX'ssubstantive standards. . . .") (citation omitted); see also Franklinv. Gwinnett County Public Sch., 503 U.S. 60, 75, 112 S. Ct. 1028, 1037-38,117 L.Ed.2d 208 (1992) (holding Title IX provides a private cause of actionfor damages arising from sexual harassment and relying on Meritor Sav. Bankv. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L.Ed.2d 49 (1986),a Title VII hostile environment case, to define "discrimination"under Title IX); H.R. Rep. No. 554 (1971) reprinted in 1972 U.S.C.C.A.N.2462, 2512 (explaining that Title IX meant to provide coverage similar toTitle VII for "those in education"); and the many cases adoptingTitle VII analysis in a Title IX hostile environment context listed infraat 21-22.5 The district court properly followed this approach and appliedTitle VII standards to determine Virginia Tech's liability for a hostileenvironment under Title IX. See Brzonkala I, 935 F. Supp. at 776-78.

Virginia Tech argues that this was error, relying solely upon Rowinsky v.Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.), cert. denied, -- U.S.--, 117 S. Ct. 165, 136 L.Ed.2d 108 (1996). Rowinsky dealt with a hostileenvironment claim by two female students against a school district for itsresponse to sexual harassment by certain male students. A divided panelof the Fifth Circuit defined the question presented as "whether therecipient of federal education funds can be found liable for sex discriminationwhen the perpetrator is a party other than the grant recipient or its agents."Id. at 1010. In answering this question, the court determined that the languageand legislative history of Title IX indicated that the statute "appliesonly to the practices of the recipients themselves," not third parties.Id. at 1013. The Rowinsky court reasoned that Title VII principles wereinapplicable because "[i]n an employment context, the actions of aco-worker sometimes may be imputed to an employer through a theory of respondeatsuperior," but a school may not be held responsible for the harassmentof one student by another. Id. at 1011 n.11. Accordingly, the Fifth Circuitheld that "[i]n the case of [Title IX] peer sexual harassment, a plaintiffmust demonstrate that the school district responded to sexual harassmentclaims differently based on sex. Thus, a school district might violate TitleIX if it treated sexual harassment of boys more seriously than sexual harassmentof girls . . . ." Id. at 1016.

We have no trouble agreeing with the Fifth Circuit that Title IX "appliesonly to the practices of the recipients themselves." Id. at 1013. However,in this respect Title IX is no different from Title VII-the Rowinsky majority'sfailure to recognize this results in a deeply flawed analysis. In framingthe question in terms of liability for the acts of third parties, Rowinskymisstates what a plaintiff, under either Title VII or Title IX, hopes toprove in a hostile environment claim. Under Title VII, a plaintiff cannotrecover because a fellow employee sexually harassed the plaintiff, but onlybecause an employer could have, but failed to, adequately remedy known harassment.As we recently noted, "an employer is liable for a sexually hostilework environment created by . . . [an] employee only if the employer knewor should have known of the illegal conduct and failed to take prompt andadequate remedial action." Andrade v. Mayfair Management, Inc., 88F.3d 258, 261 (4th Cir. 1996) (emphasis added). Consequently, a defendantemployer is held responsible under Title VII for the employer's own actions,its inadequate and tardy response, not the actions of fellow employees.6

Similarly, in a Title IX hostile environment action a plaintiff is not seekingto hold the school responsible for the acts of third parties (in this casefellow students). Rather, the plaintiff is seeking to hold the school responsiblefor its own actions, i.e. that the school "knew or should have knownof the illegal conduct and failed to take prompt and adequate remedial action."Andrade, 88 F.3d at 261. Brzonkala is not attempting to hold Virginia Techresponsible for the acts of Morrison and Crawford per se; instead she ischallenging Virginia Tech's handling of the hostile environment once shenotified college officials of the rapes. Therefore, the entire focus ofRowinsky's analysis as to whether a school may be held responsible for theacts of third parties under Title IX misses the point. Brzonkala does notseek to make Virginia Tech liable for the acts of third parties. She seeksonly to hold the school liable for its own discriminatory actions in failingto remedy a known hostile environment.

A defendant educational institution, like a defendant employer, is, of course,liable for its own discriminatory actions: even the Rowinsky majority acknowledgesthis. Rowinsky, 80 F.3d at 1012 (Title IX "prohibits discriminatoryacts" by educational institutions receiving federal financial assistance).Responsibility for discriminatory acts includes liability for failure toremedy a known sexually hostile environment. Accordingly, the district courtwas correct in applying Title VII principles to define the contours of Brzonkala'shostile environment claim. We now turn to that application.

2.

Under Title VII "to prevail on a 'hostile work environment' sexualharassment claim, an employee must prove: (1) that he [or she] was harassed'because of' his [or her] 'sex'; (2) that the harassment was unwelcome;(3) that the harassment was sufficiently severe or pervasive to create anabusive working environment; and (4) that some basis exists for imputingliability to the employer." Wrightson v. Pizza Hut of America, Inc.,99 F.3d 138, 142 (4th Cir. 1996). Similarly, under Title IX a plaintiffasserting a hostile environment claim must show: "1) that she [or he]belongs to a protected group; 2) that she [or he] was subject to unwelcomesexual harassment; 3) that the harassment was based on sex; 4) that theharassment was sufficiently severe or pervasive so as to alter the conditionsof her [or his] education and create an abusive educational environment;and 5) that some basis for institutional liability has been established."Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir. 1996);Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996) (same); Brown v. Hot,Sexy & Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir. 1995), cert. denied,516 U.S. 1159, 116 S. Ct. 1044, 134 L.Ed.2d 191 (1996) (same); Nicole M.v. Martinez Unified Sch. Dist., 964 F. Supp. 1369, 1376 (N. D. Cal. 1997)(same); see also Doe, 103 F.3d at 515 (holding that the elements of a "hostileenvironment claim under Title VII equally apply under Title IX"); Oona,R.S. v. McCaffrey, 122 F.3d 1207, 1210 (9th Cir. 1997) (applying Title VIIstandards to Title IX hostile environment claim); Murray v. New York Univ.College of Dentistry, 57 F.3d 243, 248-51 (2d Cir. 1995) (same); Collierv. William Penn Sch. Dist., 956 F. Supp. 1209, 1213-14 (E.D. Pa. 1997) (same);Pinkney v. Robinson, 913 F. Supp. 25, 32 (D. D. C. 1996) (same); Bosleyv. Kearney R-1 School Dist., 904 F. Supp. 1006, 1021-22 (W. D. Mo. 1995)(same); Kadiki v. Virginia Commonwealth Univ., 892 F. Supp. 746, 749-50(E.D. Va. 1995) (same); Ward v. Johns Hopkins Univ., 861 F. Supp. 367, 374(D. Md. 1994) (same).

Virginia Tech concedes that Brzonkala has properly alleged the first threeelements-that she was a member of a protected class, that she was subjectto unwelcome harassment, and that this harassment was based on her sex.Virginia Tech contends, however, that Brzonkala has not alleged that shewas subjected to a sufficiently abusive environment, or established thatVirginia Tech may be held liable for that environment. Accordingly, we addressthese two elements.

a.

A Title IX plaintiff must allege sexual harassment "sufficiently severeor pervasive so as to alter the conditions of her education and create anabusive educational environment." Kinman, 94 F.3d at 468. VirginiaTech argues that because Brzonkala did not return to school she experiencedno hostile environment. The district court agreed, holding that:

[T]he hostile environment that Brzonkala alleged never occurred. Brzonkalaleft [Virginia Tech] due to her concern of possible future reprisal in reactionto her pressing charges. She did not allege that this future reprisal actuallyoccurred. Second, Brzonkala did not perceive that the environment was infact abusive, but only that it might become abusive in the future.

Brzonkala I, 935 F. Supp. at 778.

Brzonkala pled that she was violently gang raped, and rape "is 'notonly pervasive harassment but also criminal conduct of the most seriousnature' that is 'plainly sufficient to state a claim for 'hostile environment'sexual harassment.'" Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir.),cert. denied, 516 U.S. 1011, 116 S. Ct. 569, 133 L.Ed.2d 493 (1995) (quotingMeritor, 477 U.S. at 67, 106 S. Ct. at 2405-06); Brock v. United States,64 F.3d 1421, 1423 (9th Cir. 1995) ("Just as every murder is also abattery, every rape committed in the employment setting is also discriminationbased on the employee's sex."); Baskerville v. Culligan Int'l Co.,50 F.3d 428, 430 (7th Cir. 1995) (citing Meritor and recognizing sexualassault as an extreme example of sexual harassment); Karen Mellencamp Davis,Note, Reading, Writing, and Sexual Harassment: Finding a ConstitutionalRemedy When Schools Fail to Address Peer Abuse, 69 Ind. L.J. 1123, 1124(1994) ("Rape and molestation provide drastic examples of the typesof sexual harassment students inflict on their peers.").

Moreover, "even a single incident of sexual assault sufficiently altersthe conditions of the victim's employment and clearly creates an abusivework environment for purposes of Title VII liability." Tomka v. SeilerCorp., 66 F.3d 1295, 1305 (2d Cir. 1995) (citing Meritor, 477 U.S. at 67,106 S. Ct. at 2405-06); see also King v. Board of Regents, 898 F.2d 533,537 (7th Cir. 1990) (acknowledging that "a single act [of discrimination]can be enough" to state a hostile environment claim under Title VII).

Thus, the district court failed to recognize that the rapes themselves createda hostile environment, and that Virginia Tech was aware of this environmentand never properly remedied it. Indeed, the university Provost's rationalefor overturning Morrison's immediate suspension for one school year-thatthis punishment was "excessive when compared with other cases"-itselfevidences an environment hostile to complaints of sexual harassment anda refusal to effectively remedy this hostile environment. Given the seriousnessof the harassment acts, the total inadequacy of Virginia Tech's redress,and Brzonkala's reasonable fear of unchecked retaliation including possibleviolence, Brzonkala did not have to return to the campus the next year andpersonally experience a continued hostile environment. Brzonkala "shouldnot be punished for a hostile environment so severe that she was forcedout entirely by loss of her legal claim against those responsible for thesituation." Patricia H. v. Berkeley Unified Sch. Dist., 830 F. Supp.1288, 1298 (N.D. Cal. 1993); see also Carrero v. New York City Housing Auth.,890 F.2d 569, 578 (2d Cir. 1989) ("A female employee need not subjectherself to an extended period of demeaning and degrading provocation beforebeing entitled to seek the remedies provided under Title VII.").

b.

The remaining issue is whether "some basis for institutional liabilityhas been established." Seamons, 84 F.3d at 1232. "[A]n employeris liable for a sexually hostile work environment created by . . . [an]employee only if the employer knew or should have known of the illegal conductand failed to take prompt and adequate remedial action." Andrade, 88F.3d at 261. We must determine whether Brzonkala has alleged facts sufficientto support an inference that Virginia Tech "knew or should have knownof the illegal conduct and failed to take prompt and adequate remedial action."Virginia Tech certainly knew about the rapes once Brzonkala informed theschool and initiated disciplinary proceedings against Morrison and Crawford.The question, therefore, is whether Virginia Tech took prompt and adequateremedial action once it was on notice of the rapes. See Paroline v. UnisysCorp., 879 F.2d 100, 106 (4th Cir. 1989), vacated in part on other grounds,900 F.2d 27 (4th Cir. 1990) (en banc). This inquiry is necessarily fact-based,and whether a response is "prompt and adequate" will depend onthe specific allegations (and ultimately evidence) in each case. Id. at106-07.

Brzonkala alleges that after she was brutally raped three times she ceasedattending classes, attempted suicide, and sought the aid of the school psychiatrist.Despite Virginia Tech's awareness of these developments no university official,including the psychiatrist, ever made more than a cursory inquiry into thecause of her distress. Furthermore, she alleges that when she directly reportedthe rapes to Virginia Tech authorities, the college neither provided a fairhearing nor meted out appropriate punishment. During the first hearing herattacker essentially admitted that he raped her after she twice told himno. The first hearing resulted in a finding that Morrison had committedsexual assault, and his suspension for one school year. This result wasupheld by an appeals officer, and under Virginia Tech's published rulesthat decision was final and not subject to change.

Nevertheless, Virginia Tech voided the first hearing and reopened the caseagainst her admitted rapist, assertedly in violation of its own rules andon the basis of a specious legal argument. The second hearing was procedurallybiased against Brzonkala in numerous ways, and unbeknownst to her, Morrisonwas only charged with the lesser offense of using abusive language. Still,Morrison was again found guilty, and suspended for the next school year.On appeal a senior college official determined that there was sufficientevidence that Morrison had violated the University's Abusive Conduct Policy,and that Morrison's due process argument was meritless. Nonetheless, theappeals officer decided that suspending Brzonkala's rapist for a schoolyear was "excessive when compared with other cases." The universitythen overturned that suspension and permitted her attacker to return toschool with a full athletic scholarship.

Virginia Tech took this action without notifying Brzonkala, although shehad been informed of the university's actions in the case at every previousjuncture. This decision caused her to fear for her safety and to withdrawfrom college altogether. As punishment for his admitted rape Morrison receiveda "deferred suspension until [his] graduation from Virginia Tech"and "a one-hour educational session."

In short, Brzonkala alleges that Virginia Tech permitted, indeed fostered,an environment in which male student athletes could gang rape a female studentwithout any significant punishment to the male attackers, nor any real assistanceto the female victim. She alleges a legion of procedural irregularitiesin the hearing process, Virginia Tech's disregard for its own rules of finality,and its eventual decision to impose virtually no penalty for an admittedrape. These facts, if proven, would allow a jury to find that Virginia Tech'sresponse to Brzonkala's gang rape was neither prompt nor adequate.

Virginia Tech argues that because it did levy some punishment against Morrison,its response was adequate. A defendant need not "make the most effectiveresponse possible" to sexual harassment. See Spicer v. Virginia Dept.of Corrections, 66 F.3d 705, 710 (4th Cir. 1995) (en banc). This does notmean, however, that any remedy, no matter how delayed or weak, will be adequate.Rather, we have consistently held under Title VII that a defendant employeris "liable for sexual harassment committed by its employees if no adequateremedial action is taken." Id. Similar reasoning applies in the TitleIX context. In light of the seriousness of Brzonkala's allegations, thelong and winding disciplinary process, and the proverbial slap on the wristas punishment, we cannot conclude at this preliminary stage that VirginiaTech's remedy was either prompt or adequate.

For all of these reasons, Brzonkala has alleged sufficient facts to statea Title IX hostile environment claim against Virginia Tech.

B.

Brzonkala also alleges a Title IX disparate treatment claim, i.e., thatVirginia Tech discriminated against her on the basis of sex during the disciplinaryproceed- ings against Morrison and Crawford. In analyzing Brzonkala's claim,Title VII again "provide[s] a persuasive body of standards to whichwe may look in shaping the contours of a private right of action under TitleIX." Preston, 31 F.3d at 207.

Indeed, Virginia Tech does not even argue that Title VII principles areinapplicable in analyzing Title IX disparate treatment claims.

Proof of discriminatory intent is necessary to state a disparate treatmentclaim under Title VII. International Bhd. of Teamsters v. United States,431 U.S. 324, 335 n.15, 97 S. Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977).Absent some indication in the statute or regulations, Title IX similarlyrequires proof of discriminatory intent to state a disparate treatment claim.As such, we must examine Brzonkala's complaint to see if she has allegedsufficient facts to infer such intent. See Yusuf v. Vassar College, 35 F.3d709, 715 (2d Cir. 1994).

In Yusuf, the Second Circuit dealt with allegations of a discriminatoryschool disciplinary hearing, and described the type of evidence a plaintiffmust plead to establish the requisite intent:

[A]llegations of a procedurally or otherwise flawed [school disciplinary]proceeding that has led to an adverse and erroneous outcome combined witha conclusory allegation of gender discrimination is not sufficient to survivea motion to dismiss. The fatal gap is, again, the lack of a particularizedallegation relating to a causal connection between the flawed outcome andgender bias. A plaintiff must thus also allege particular circumstancessuggesting that gender bias was a motivating factor behind the erroneousfinding. Allegations of a causal connection in the case of university disciplinarycases can be of the kind that are found in the familiar setting of TitleVII cases. . . . Such allegations might include, inter alia, statementsby members of the disciplinary tribunal, statements by pertinent universityofficials, or patterns of decision-making that also tend to show the influenceof gender. Of course, some allegations, such as statements reflecting biasby members of the tribunal, may suffice both to cast doubt on the accuracyof the disciplinary adjudication and to relate the error to gender bias.

Yusuf, 35 F.3d at 715 (citations omitted). In this case Brzonkala has allegeda flawed proceeding and made a conclusory assertion that Virginia Tech discriminatedin favor of male football players. But she has not alleged any discriminatorystatements or treatment by Virginia Tech, or any systematic mistreatmentof women or rape victims.

Nevertheless, Brzonkala maintains that she has made sufficient allegationsof Virginia Tech's discriminatory intent. First, she argues that VirginiaTech's policy of not automatically reporting rapes to the police shows adiscriminatory intent. Brzonkala does not allege, however, that the universitydiscouraged or hindered her (or other rape victims) from filing charges,or that the university generally treats rape less seriously in its own disciplinaryproceedings. Nor does she state facts to support an inference that the universitycreated its non-reporting policy to discriminate against rape victims. Withoutan allegation that Virginia Tech itself fails to punish rapists, or impedescriminal investigations, or separate facts to establish that the policywas a result of gender bias, the university has not discriminated againstrape victims, because these victims can always pursue criminal charges themselves.In fact, because of the intensely personal nature of the crime, as wellas the present day difficulties inherent in pursuing rape charges, a victimof rape may not always want to press charges or involve the police. SeeBrzonkala I, 935 F. Supp. at 777.

Next, Brzonkala relies upon allegations that her access to evidence, likethat of the plaintiff in Yusuf, was hampered, as the factual basis for afinding of discriminatory intent. It is true that in Yusuf the plaintiffalleged numerous procedural difficulties. Yusuf, 35 F.3d at 712-13. But,in Yusuf the plaintiff also asserted that "males accused of sexualharassment at Vassar are 'historically and systematically' and 'invariablyfound guilty, regardless of the evidence, or lack thereof.'" Id. at716. This sort of systematic discrimination, on top of the procedural irregularities,sufficed to state a claim of disparate treatment. Here we have nothing but"allegations of a procedurally or otherwise flawed proceeding thathas led to an adverse and erroneous outcome combined with a conclusory allegationof gender discrimination." Id. at 715. These allegations are "notsufficient to survive a motion to dismiss." Id.; cf. Houck v. VirginiaPolytechnic Inst. & State Univ., 10 F.3d 204, 206-07 (4th Cir. 1993)( "[I]n the Title VII context, isolated incidents or random comparisonsdemonstrating disparities in treatment may be insufficient to draw a primafacie inference of discrimination without additional evidence that the allegedphenomenon of inequality also exists with respect to the entire relevantgroup of employees."); Cook v. CSX Transp. Corp., 988 F.2d 507, 511-13(4th Cir. 1993) (same).

Finally, Brzonkala contends that the woefully inadequate punishment metedout against Morrison is in and of itself proof of sex discrimination. Again,without more, this does not prove intentional gender discrimination againstBrzonkala. In sum, the district court correctly dismissed Brzonkala's TitleIX claim of disparate treatment.7

III.

We now turn to the question of whether the district court erred in dismissingBrzonkala's claim that Morrison and Crawford violated Title III of the ViolenceAgainst Women Act of 1994 ("VAWA"). See 42 U.S.C. § 13981(1994). The district court held that Brzonkala alleged a valid VAWA claim,but that VAWA was beyond congressional authority, and thus unconstitutional.See Brzonkala II, 935 F. Supp. at 801. We agree with the district courtthat Brzonkala stated a claim under VAWA. We conclude, however, that Congressacted within its authority in enacting VAWA and hold that the district courterred in ruling the statute unconstitutional.

A.

In September 1994, after four years of hearings, Congress enacted VAWA,a comprehensive federal statute designed to address "the escalatingproblem of violent crime against women." S. Rep. No. 103-138, at 37(1993). Title III, the portion of the statute at issue in this case, establishesthe right upon which a civil claim can be brought:

All persons within the United States shall have the right to be free fromcrimes of violence motivated by gender. . . .

42 U.S.C. § 13981(b).

The statute goes on to set forth the elements necessary to plead and provesuch a claim:
(c) Cause of action
A person (including a person who acts under color of any statute, ordinance,regulation, custom, or usage of any State) who commits a crime of violencemotivated by gender and thus deprives another of the right declared in subsection(b) of this section shall be liable to the party injured, in an action forthe recovery of compensatory and punitive damages, injunctive and declaratoryrelief, and such other relief as a court may deem appropriate.
(d) Definitions
For purposes of this section-

(1) the term "crime of violence motivated by gender" means a crimeof violence committed because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender; and
(2) the term "crime of violence" means-

(A) an act or series of acts that would constitute a felony against theperson or that would constitute a felony against property if the conductpresents a serious risk of physical injury to another, and that would comewithin the meaning of State or Federal offenses described in Section 16of Title 18, whether or not those acts have actually resulted in criminalcharges, prosecution, or conviction and whether or not those acts were committedin the special maritime, territorial, or prison jurisdiction of the UnitedStates; and

(B) includes an act or series of acts that would constitute a felony describedin subparagraph (A) but for the relationship between the person who takessuch action and the individual against whom such action is taken.

42 U.S.C. § 13981. Thus, to state a claim under § 13981(c) a plaintiffvictim must allege "a crime of violence motivated by gender."42 U.S.C. § 13981(c).

Morrison and Crawford do not argue that Brzonkala's allegation of gang rapefails to satisfy § 13981(d)(2)'s definition of a "crime of violence."However, they do briefly assert that Brzonkala has failed to allege a "crimeof violence motivated by gender." 42 U.S.C. § 13981(c) (emphasisadded).

A "crime of violence motivated by gender" is defined as "acrime of violence committed because of gender or on the basis of gender,and due, at least in part, to an animus based on the victim's gender."42 U.S.C. § 13981(d)(1). Congress has indicated that "[p]roofof 'gender motivation' under Title III" of VAWA is to "proceedin the same ways proof of race or sex discrimination proceeds under othercivil rights laws. Judges and juries will determine 'motivation' from the'totality of the circumstances' surrounding the event." S. Rep. No.103-138, at 52; see also S. Rep. No. 102-197, at 50 (1991).

The statute does not outlaw "[r]andom acts of violence unrelated togender." 42 U.S.C. § 13981(e)(1). However, bias "can be provenby circumstantial as well as indirect evidence." S. Rep. No. 103-138,at 52. "Generally accepted guidelines for identifying hate crimes mayalso be useful" in determining whether a crime is gender-motivated,such as: "language used by the perpetrator; the severity of the attack(including mutilation); the lack of provocation; previous history of similarincidents; absence of any other apparent motive (battery without robbery,for example); common sense." Id. at 52 n.61.

With these standards in mind, we examine Brzonkala's complaint. Brzonkalaalleges that two virtual strangers, Morrison and Crawford, brutally rapedher three times within minutes after first meeting her. Although Brzonkaladoes not allege mutilation or other severe injury, the brutal and unprotectedgang rape itself constitutes an attack of significant "severity."Id. Moreover, Brzonkala alleges that the rapes were completely without "provocation."Id. One of her assailants conceded during the college disciplinary hearingthat Brzonkala twice told him, "No" before he initially rapedher. Further, there is an absence of any "apparent motive" forthe rapes other than gender bias. Id. For example, no robbery or other theftaccompanied the rapes.

Finally, Brzonkala alleges that when Morrison had finished raping her forthe second time he told her, "You better not have any fucking diseases."She also alleges that Morrison later announced to the college dining room,"I like to get girls drunk and fuck the shit out of them." Verbalexpression of bias by an attacker is certainly not mandatory to prove genderbias, Brzonkala II, 935 F. Supp. at 785 ("The purpose of the statutewould be eviscerated if, to state a claim, a plaintiff had to allege, forexample, that the defendant raped her and stated, 'I hate women.' "),but it is "helpful." See S. Rep. No. 103-138, at 51. As the districtcourt noted, Morrison's "statement reflects that he has a history oftaking pleasure from having intercourse with women without their sober consent"and that "[t]his statement indicates disrespect for women in generaland connects this gender disrespect to sexual intercourse." BrzonkalaII, 935 F. Supp. at 785. In addition, since Brzonkala alleged that Morrisonand Crawford engaged in a conspiracy to rape her, Morrison's comments arealso relevant in assessing Crawford's liability. See Loughman v. Consol-PennsylvaniaCoal Co., 6 F.3d 88, 103 (3d Cir. 1993) (concluding that in a civil conspiracy"every conspirator is jointly and severally liable for all acts ofco-conspirators taken in furtherance of the conspiracy"); United Statesv. Carpenter, 961 F.2d 824, 828 n. 3 (9th Cir. 1992) (holding that "actsand statements in furtherance of the conspiracy may be attributed to"a co-conspirator and citing Pinkerton v. United States, 328 U.S. 640, 646-47,66 S. Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946)); United States v. Chorman,910 F.2d 102, 111 (4th Cir. 1990) (same).

In sum, Brzonkala has clearly alleged violations of VAWA. Virtually allof the earmarks of "hate crimes" are asserted here: an unprovoked,severe attack, triggered by no other motive, and accompanied by languageclearly stating bias. The district court correctly concluded that Brzonkalaalleged a VAWA claim.

B.

The remaining issue before us is whether the district court correctly heldthat Congress exceeded its constitutional authority in enacting VAWA. Congressitself directly addressed this question. On the basis of numerous specificfindings and a mountain of evidence, Congress stated that it was invokingits authority "[p]ursuant to . . . section 8 of Article I of the Constitution"to enact a new civil rights law to protect "victims of gender motivatedviolence and to promote public safety, health, and activities affectinginterstate commerce. . . ." 42 U.S.C. § 13981(a) (emphasis added).8Article I, Section 8, Clause 3 of the Constitution empowers Congress to"regulate Commerce . . . among the several states." U.S. Const.art. I, § 8, cl. 3.

In assessing whether Congress exceeded its authority under the CommerceClause, we note that every act of Congress is entitled to a "strongpresumption of validity and constitutionality," Barwick v. CelotexCorp., 736 F.2d 946, 955 (4th Cir. 1984), and will be invalidated only "forthe most compelling constitutional reasons." Mistretta v. United States,488 U.S. 361, 384, 109 S. Ct. 647, 661, 102 L.Ed.2d 714 (1989). The SupremeCourt has directed that "[g]iven the deference due 'the duly enactedand carefully considered decision of a coequal and representative branchof our Government,'" a court is "not lightly [to] second-guesssuch legislative judgments." Westside Comm. Bd. of Educ. v. Mergens,496 U.S. 226, 251, 110 S. Ct. 2356, 2372, 110 L.Ed.2d 191 (1990) (quotingWalters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 319, 105S. Ct. 3180, 3188, 87 L.Ed.2d 220 (1985)). This is "particularly"true when, as here, the legislative "judgments are based in part onempirical determinations." Id. Deference to such judgments by the legislatureconstitutes the "paradigm of judicial restraint." FCC v. BeachCommunications, Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 2101, 124 L.Ed.2d211 (1993).

Moreover, "[t]he task of a court that is asked to determine whethera particular exercise of congressional power is valid under the CommerceClause is relatively narrow." Hodel v. Virginia Surface Mining &Reclamation Ass'n, 452 U.S. 264, 276, 101 S. Ct. 2352, 2360 (1981); seealso United States v. Lopez, 514 U.S. 549, 568, 115 S. Ct. 1624, 1634, 131L.Ed.2d 626 (1995) (Kennedy, J., concurring) ("The history of the judicialstruggle to interpret the Commerce Clause . . . counsels great restraintbefore the Court determines that the Clause is insufficient to support anexercise of the national power."). Thus, a reviewing court need onlydetermine "whether a rational basis existed for concluding that a regulatedactivity" substantially affects interstate commerce. Lopez, 514 U.S.at 557, 115 S. Ct. at 1628-29.

With these directives in mind, we consider whether Congress exceeded itsauthority under the Commerce Clause in passing VAWA. The Supreme Court haslong held, and recently reiterated in Lopez, that there are "threebroad categories of activity that Congress may regulate" under theCommerce Clause:
First, Congress may regulate the use of the channels of interstate commerce.. . . Second, Congress is empowered to regulate and protect the instrumentalitiesof interstate commerce, or persons or things in interstate commerce, eventhough the threat may come only from intrastate activities. . . . Finally,Congress' commerce authority includes the power to regulate those activitieshaving a substantial relation to interstate commerce . . . i.e., those activitiesthat substantially affect interstate commerce.
Lopez, 514 U.S. at 558-559, 115 S. Ct. at 1629-30 (citations omitted); UnitedStates v. Bailey, 112 F.3d 758, 765-66 (4th Cir. 1997), cert. denied, --U.S. --, 118 S. Ct. 240, 139 L.Ed.2d 170 (1997) (rejecting a Lopez challengeto Title II of VAWA and stating Lopez's three-part test).

Here, as in Lopez, "[t]he first two categories of authority may bequickly disposed of:" VAWA "is not a regulation of the use ofthe channels of interstate commerce, nor is it an attempt to prohibit theinterstate transportation of a commodity through the channels of commerce;nor can [VAWA] be justified as a regulation [protecting] an instrumentalityof interstate commerce or a thing in interstate commerce." Lopez, 514U.S. at 559, 115 S. Ct. at 1630. "Thus, if [VAWA] is to be sustained,it must be under the third category as a regulation of an activity thatsubstantially affects interstate commerce." Id.

The Lopez Court applied the substantial effects test to the Gun Free SchoolZones Act, which made it a federal crime to knowingly possess a firearmin a school zone. 18 U.S.C. § 922(q) (1988 ed. Supp. V) (amended 1994,1996). In passing § 922(q), Congress attempted to supplant state criminallaws with a federal statute that criminalized an activity that on its facehad "nothing to do with" commerce, without making any findingsdemonstrating the activity affected interstate commerce or including a jurisdictionalelement ensuring a case by case connection with interstate commerce. Lopez,514 U.S. at 561 and n. 3, 115 S. Ct. at 1630-31 and n. 3. In these circumstances,the Supreme Court "would have [had] to pile inference upon inference"to find a rational basis for concluding the statute "substantiallyaffect[ed] any sort of interstate commerce." Id. at 567, 115 S. Ct.at 1634. This the Court declined to do, and so declared § 922(q) unconstitutional.Id.

In contrast to the congressional silence in Lopez, Congress made voluminousfindings when it enacted VAWA. Accordingly, we can begin where the LopezCourt could not, by "evaluat[ing] the legislative judgment that theactivity in question substantially affected interstate commerce." Lopez,514 U.S. at 563, 115 S. Ct. at 1632; see also City of Boerne v. Flores,-- U.S. --, -- - --, 117 S. Ct. 2157, 2169-2170, 138 L.Ed.2d 624 (1997)(recognizing the importance of Congressional findings in determining the"appropriateness of [Congress's] remedial measures"). In doingso, we recognize that discerning a rational basis "is ultimately ajudicial rather than a legislative question," Lopez, 514 U.S. at 557n.2, 115 S. Ct. at 1629 n.2 (quoting Heart of Atlanta Motel, Inc. v. UnitedStates, 379 U.S. 241, 273, 85 S. Ct. 348, 366, 13 L.Ed.2d 258 (1964) (Black,J., concurring)), and "[s]imply because Congress may conclude thata particular activity substantially affects interstate commerce does notnecessarily make it so." Id. (quoting Hodel, 452 U.S. at 311, 101 S.Ct. at 2391 (Rehnquist, J., concurring)). But a "court must defer"to congressional findings when there is "a rational basis for sucha finding." Hodel, 452 U.S. at 276, 101 S. Ct. at 2360. Indeed, "[t]heSupreme Court has without fail given effect to such congressional findings."Laurence H. Tribe, American Constitutional Law, 310-11 (2d ed. 1988). Accordingly,we first examine the congressional findings made in connection with VAWA.See United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995) (rejectinga Lopez challenge to the "Comprehensive Drug Abuse Prevention and ControlAct" and beginning and ending our analysis by relying totally uponCongress's "detailed findings" on the interstate commerce effects).

1.

The Congressional findings and testimony that support the passage of VAWApursuant to the Commerce Clause are detailed and extensive.9 Congress carefullydocumented the enormity of the problem caused by violence against women.For example, Congress found that:
* "Violence is the leading cause of injury to women ages 15-44. . .." S. Rep. No. 103-138, at 38 (1993).
* "[F]or the past 4 years [prior to 1993], the U.S. Surgeons Generalhave warned that family violence-not heart attacks or cancer or strokes-posesthe single largest threat of injury to adult women in this country."Id. at 41- 42 (footnote omitted).
* "An estimated 4 million American women are battered each year bytheir husbands or partners. Approximately 95% of all domestic violence victimsare women." H.R.Rep. No. 103-395, at 26 (1993) (footnotes omitted).
* "Three out of four American women will be victims of violent crimessometime during their life." Id. at 25 (footnote omitted).
* "Since 1988, the rate of incidence of rape has risen four and a halftimes as fast as the total crime rate. There were 109,062 reported rapesin the United States in 1992-one every five minutes. The actual number ofrapes committed is approximately double that figure. . . ." Id. (footnotesomitted).
The committee reports similarly found that "the cost to society"resulting from violence against women "is staggering." S. Rep.No. 101-545, at 33 (1990). Domestic violence alone is estimated to costemployers "at least $3 billion-not million, but billion-dollars a year"due to absenteeism in the workplace. Id. Furthermore, "estimates suggestthat we spend $5 to $10 billion a year on health care, criminal justice,and other social costs of domestic violence." S. Rep. No. 103-138,at 41. Moreover, "[i]t is not a simple matter of adding up the medicalcosts, or law enforcement costs, but of adding up all of those expensesplus the costs of lost careers, decreased productivity, foregone educationalopportunities, and long-term health problems." S. Rep. No. 101-545,at 33.

These monetary figures were accompanied by other evidence establishing thatviolence against women has a substantial impact on interstate commerce:
Over 1 million women in the United States seek medical assistance each yearfor injuries sustained by their husbands or other partners. As many as 20percent of hospital emergency room cases are related to wife battering.
But the costs do not end there: woman abuse "has a devastating socialand economic effect on the family and the community." . . . It takesits toll in homelessness: one study reports that as many as 50 percent ofhomeless women and children are fleeing domestic violence. It takes itstoll in employee absenteeism and sick time for women who either cannot leavetheir homes or are afraid to show the physical effects of the violence.
S. Rep. No. 101-545, at 37. Fear of violence "takes a substantial tollon the lives of all women, in lost work, social, and even leisure opportunities."S. Rep. No. 102-197, at 38 (1991).

Thus, based upon an exhaustive and meticulous investigation of the problem,Congress found that:
crimes of violence motivated by gender have a substantial adverse effecton interstate commerce, by deterring potential victims from traveling interstate,from engaging in employment in interstate business, and from transactingwith business, and in places involved, in interstate commerce . . . by diminishingnational productivity, increasing medical and other costs, and decreasingthe supply of and the demand for interstate products.
H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N.1839, 1853.10

In concluding that "[t]here is no doubt that Congress has the powerto create the Title III remedy under" the Commerce Clause, Congressnoted that:
[g]ender-based crimes and the fear of gender-based crimes restricts movement,reduces employment opportunities, increases health expenditures, and reducesconsumer spending, all of which affect interstate commerce and the nationaleconomy. Gender-based violence bars its most likely targets-women-from fullparticipation in the national economy. For example, studies report thatalmost 50 percent of rape victims lose their jobs or are forced to quitin the aftermath of the crime. Even the fear of gender-based violence affectsthe economy because it deters women from taking jobs in certain areas orat certain hours that pose a significant risk of such violence. . . . Forexample, women often refuse higher paying night jobs in service/retail industriesbecause of the fear of attack. Those fears are justified: the No. 1 reasonwhy women die on the job is homicide and the highest concentration of thosewomen is in service/retail industries . . . . 42 percent of deaths on thejob of women are homicides; only 12 percent of the deaths of men on thejob are homicides.
S. Rep. No. 103-138, at 54 & n.70 (footnotes omitted).

Our task is simply to discern whether Congress had "a rational basis"for concluding that the regulated activity-here violence against women-substantially"affected interstate commerce." Lopez, 514 U.S. at 558-559, 115S. Ct. at 1629-30.11 After four years of hear-ings and consideration ofvoluminous testimonial, sta-tistical, and documentary evidence, Congressmade an unequivocal and persuasive finding that violence against women substantiallyaffects interstate commerce. Even the district court recognized that "[a]reasonable inference from the congressional findings is that violence againstwomen has a major effect on the national economy." Brzonkala II, 935F. Supp. at 792. Accordingly, whatever one's doubts as to whether TitleIII of VAWA represents a good policy decision, Seaton v. Seaton, 971 F.Supp. 1188 (E.D. Tenn. 1997), we can only conclude that Congress' findingsare grounded in a rational basis. We note that every court to consider thequestion except the court below, has so held. See Crisonino v. New YorkCity Housing Auth., No. 96 Civ. 9742(HB) (S.D.N.Y. Nov. 18, 1997); Anisimovv. Lake, 982 F. Supp. 531 (N.D. Ill. 1997); Seaton, 971 F. Supp. at 1194;Doe v. Hartz, 970 F. Supp. 1375 (N.D. Iowa 1997); Doe v. Doe, 929 F. Supp.608 (D. Conn. 1996).

In fact, in United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995), we recentlyrelied exclusively on less extensive Congressional findings to uphold Section401(a)(1) of the Comprehensive Drug Abuse Prevention and Control Act of1970, 21 U.S.C. § 841(a)(1) (1994). Id. at 1111, 1112. In Leshuk thedefendant was convicted of possessing and cultivating marijuana in violationof § 841(a)(1), and raised a Lopez challenge to the statute. Id. at1107-08. We held that Lopez did not require the invalidation of § 841(a)(1)because the "intrastate drug activities" that it regulated "areclearly tied to interstate commerce." 65 F.3d at 1112. We based ourconclusion wholly on Congress's "detailed findings that intrastatemanufacture, distribution, and possession of controlled substances, as aclass of activities, have a substantial and direct effect upon interstatedrug trafficking and that effective control of the interstate problems requiresthe regulation of both intrastate and interstate activities." Id. (internalquotation marks omitted). Without further ado we "relied upon thesefindings" to hold the Commerce Clause authorized Congress to enactthis statute. Id.

Similarly, earlier this year, in Hoffman v. Hunt we reviewed "the congressionalreports" to uphold the Freedom of Access to Clinics Act (FACE), determiningthat those reports made "clear" that "several aspects ofinterstate commerce are directly and substantially affected by the regulatedconduct." 126 F.3d 575, 586-88 (4th Cir. 1997). Because Congress hadmade these persuasive findings we concluded that we did not need to "'pileinference upon inference' to find a substantial effect on interstate commerce."Id. (quoting Lopez, 514 U.S. at 567, 115 S. Ct. at 1633-34). The congressionalfindings setting forth VAWA's substantial effect on interstate commerceare far more detailed and complete than those we found sufficient to establisha rational basis for the statutes challenged in Leshuk and Hoffman, andwe thus have no hesitation similarly upholding VAWA. When a court finds"that the legislators, in light of the facts and testimony before them,have a rational basis for finding a chosen regulatory scheme necessary tothe protection of commerce, [its] investigation is at an end." UnitedStates v. Beuckelaere, 91 F.3d 781, 785 (6th Cir. 1996) (quoting Katzenbachv. McClung, 379 U.S. 294, 303, 85 S. Ct. 377, 383, 13 L.Ed.2d 290 (1964)).12

2.

Contrary to the district court's holding, and the arguments of Morrisonand Crawford, nothing in Lopez requires a different result.

In noting that § 922(q) "plow[ed] thoroughly new ground and represent[ed]a sharp break with the longstanding pattern of federal firearms legislation,"Lopez, 514 U.S. at 563, 115 S. Ct. at 1632, the Lopez Court clearly indicatedthat in finding this statute unconstitutional it was enunciating a "limitedholding." Id. at 568, 115 S. Ct. at 1634 (Kennedy, J., concurring).Although the Court refused to make an "additional expansion" toCongress's Commerce power to uphold § 922(q), and clarified that aregulated activity must "substantially affect interstate commerce,"it did not overrule a single Commerce Clause precedent, signal a decreasein congressional power under the Commerce Clause, or abandon the "rationalbasis" test. Id. at 557-69, 115 S. Ct. at 1629-34; see also UnitedStates v. Wright, 117 F.3d 1265, 1269 (11th Cir. 1997) ("Lopez didnot alter our approach to determining whether a particular statute fallswithin the scope of Congress's Commerce Clause authority."); UnitedStates v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995) (The Lopez Court "reaffirmedrather than overturned the previous half century of Commerce Clause precedent"),cert. denied, 519 U.S. 806, 117 S. Ct. 46-47, 136 L.Ed.2d 12 (1996).

In fact, in describing the history of the Court's Commerce Clause jurisprudence,Lopez forthrightly affirmed the modern expansive view of Congress's powerunder the Commerce Clause, and eschewed the more restrictive view of "commerce"based on formalistic distinctions between "direct" and "indirect"effects on interstate commerce. Id. at 555, 115 S. Ct. at 1627- 28. TheCourt noted that "modern-era precedents . . . confirm that this poweris subject to outer limits," i.e. it cannot "be extended so asto embrace effects upon interstate commerce so indirect and remote"as to "obliterate the distinction between what is national and whatis local and create a completely centralized government." Id. at 555-59,115 S. Ct. at 1628-29. But the Court expressly followed decades of "modern-eraprecedents" recognizing that a court's only role in considering a CommerceClause challenge is "to decide whether a rational basis existed forconcluding that a regulated activity sufficiently affected interstate commerce."Id. at 557, 115 S. Ct. at 1629 (citing Hodel, 452 U.S. at 276-80, 101 S.Ct. at 2360-62; Perez v. United States, 402 U.S. 146, 155-56, 91 S. Ct.1357, 1362, 28 L.Ed.2d 686 (1971)); Katzenbach v. McClung, 379 U.S. 294,299-301, 85 S. Ct. 377, 381-82, 13 L.Ed.2d 290 (1964); and Heart of AtlantaMotel, 379 U.S. at 252-253, 85 S. Ct. at 354-55; see also Lopez, 514 U.S.at 574, 115 S. Ct. at 1637 (Kennedy, J., concurring) (Lopez does not "callin question" prior commerce clause "principles").13
Morrison and Crawford's reliance on Lopez falters not only because theyignore the limited nature of the Lopez holding but also because VAWA differsfrom § 922(q) in several important respects. In order to uphold VAWA,we need not "pile inference upon inference" as the Governmentasked the Court to do in Lopez. Lopez, 514 U.S. at 567, 115 S. Ct. at 1633-34.Because Congress made no findings to support § 922(q) the Governmentwas forced to argue that guns in schools affected commerce based upon severaltenuous, multi-layered theories. See id. at 564, 115 S. Ct. at 1632; Terry,101 F.3d at 1418 (quoting Lopez, 514 U.S. at 564, 115 S. Ct. at 1632) (Forexample, "gun possession near schools threatens the educational environment,which hampers the educational process, which creates a 'less productivecitizenry' which adversely affects 'the Nation's economic well-being' andwhich in the end adversely affects interstate commerce."). VAWA, bycontrast, regulates behavior-gender-based violent crime against women-whichCongress has found substantially and gravely affects interstate commerceon the basis of abundant evidence. Cf. Perez, 402 U.S. at 154, 91 S. Ct.at 1362 (rejecting Commerce Clause challenge because "credit transactions,though purely intrastate, may in the judgment of Congress affect interstatecommerce"). To connect VAWA with interstate commerce, a court neednot make any inferences-Congress itself has clearly established and documentedthat gender based violence against women substantially affects interstatecommerce.

Additionally, unlike § 922(q), VAWA does not invade areas of traditionalstate control. The Lopez Court noted that "[u]nder our federal system,the 'States possess primary authority for defining and enforcing the criminallaw.' . . . When Congress criminalizes conduct already denounced as criminalby the States, it effects a 'change in the sensitive relation between federaland state criminal jurisdiction.'" Lopez, 514 U.S. at 561, 115 S. Ct.at 1631 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S. Ct. 1710,1720-21, 123 L.Ed.2d 353 (1993), and United States v. Enmons, 410 U.S. 396,411-12, 93 S. Ct. 1007, 1015-16, 35 L.Ed.2d 379 (1973)). Title III of VAWAis not a criminal statute and it displaces no state criminal law. Cf. id.(noting that statute in Lopez "displace[s] state policy choices"and "overrides legitimate state . . . laws"). Nothing in TitleIII prevents a victim of gender-based violence from bringing state criminalcharges or pursuing state tort remedies, or affects how the state treatsthose claims.

In fact, far from displacing state law, Congress carefully designed VAWAto harmonize with state law and protect areas of state concern. Thus, VAWAreferences state criminal laws in defining a "crime of violence."See 42 U.S.C. § 13981(d)(2) (defining "crime of violence"as "an act or series of acts that would constitute a felony againstthe person or that would constitute a felony against property if the conductpresents a serious risk of physical injury to another, and that would comewithin the meaning of State or Federal offenses described in section 16of Title 18. . . .") (emphasis added). Moreover, Congress expresslylimited the reach of VAWA in further deference to traditional areas of stateexpertise such as divorce or child custody proceedings. See 42 U.S.C. §13981(e) (4) (VAWA does not confer "jurisdiction over any State lawclaim seeking the establishment of a divorce, alimony, equitable distributionof marital property, or child custody decree."). In sum, VAWA actsto supplement, rather than supplant, state criminal, civil, and family lawcontrolling gender violence. The States are still free to "experiment[] to devise various solutions" to the problems of gender-based violenceagainst women. Lopez, 514 U.S. at 581, 115 S. Ct. at 1641 (Kennedy, J.,concurring). 14

In addition, unlike the statute invalidated in Lopez, VAWA does not occupya legal territory where "States lay claim by right of history and expertise."Id. at 581-83, 115 S. Ct. at 1641 (Kennedy, J., concurring). Instead, VAWAlegislates in an area-civil rights-that has been a federal responsibilitysince shortly after the Civil War. Furthermore, federal action is particularlyappropriate when, as here, there is persuasive evidence that the Stateshave not successfully protected the rights of a class of citizens. In passingVAWA Congress made extensive and convincing findings that state law hadfailed to successfully address gender-motivated violence against women.Congress concluded that:
Other State remedies have proven inadequate to protect women against violentcrimes motivated by gender animus. Women often face barriers of law, ofpractice, and of prejudice not suffered by other victims of discrimination.Traditional State law sources of protection have proved to be difficultavenues of redress for some of the most serious crimes against women. Studyafter study has concluded that crimes disproportionately affecting womenare often treated less seriously than crimes affecting men. [C]ollectively,these reports provide overwhelming evidence that gender bias permeates thecourt system and that women are most often its victims.
S. Rep. No. 103-138, at 49 (footnotes omitted).15 In VAWA, Congress haspassed a civil rights law, a quintessential area of federal expertise, inresponse to "existing bias and discrimination in the criminal justicesystem." H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994U.S.C.C.A.N. 1839, 1853.

Nonetheless, Morrison and Crawford argue that Lopez requires a differentresult. They note that § 922(q) had "nothing to do with 'commerce'"and was not "an essential part of a larger regulation of economic activity,"Lopez, 514 U.S. at 561, 115 S. Ct. at 1631, and assert that VAWA similarlyregulates a non-economic activity and is therefore beyond Congress's CommerceClause authority. This argument, however, misreads both Lopez and VAWA.

First, as Morrison and Crawford concede, Lopez clearly does not hold thata statute must regulate economic activity to pass muster under the CommerceClause. Such a holding could not be squared with past Commerce Clause jurisprudence,or Lopez itself. Lopez quoted Wickard v. Filburn's famous statement that"[e]ven if appellee's activity be local and though it may not be regardedas commerce, it may still, whatever its nature, be reached by Congress ifit exerts a substantial economic effect on interstate commerce." Wickardv. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89, 87 L.Ed. 122 (1942) (emphasisadded), quoted in Lopez, 514 U.S. at 556, 115 S. Ct. at 1628. Similarly,the Lopez Court relied on Heart of Atlanta Motel, 379 U.S. 241, 85 S. Ct.348, 13 L.Ed.2d 258 and Katzenbach, 379 U.S. at 294, 85 S. Ct. at 379. SeeLopez, 514 U.S. at 557-563, 115 S. Ct. at 1628-32. These cases involvedthe public accommodation provisions of the Civil Rights Act of 1964, 78Stat. 243 (codified as amended at 42 U.S.C. § 2000a (1994)), not an"economic" regulation but a civil rights statute, which like VAWAprohibits acts motivated by bias that have a substantial effect on interstatecommerce.16
Furthermore, the actual basis of the Lopez holding, which Morrison and Crawfordattempt to ignore, undermines their argument as to the importance of "economicactivity." The Lopez Court did not strike down § 922(q) becauseit regulated non-economic activity. The Court invalidated § 922(q)because neither Congress nor the Government convinced the Court that therewas a rational basis for concluding that possession of a gun in a schoolzone substantially affected interstate commerce. Lopez, 514 U.S. at 561-67,115 S. Ct. at 1631-33. Here, however, there clearly is a rational basisfor concluding that gender-based violence against women does precisely this.

Even if the regulated activity itself had to have an economic nexus, VAWA,unlike § 922(q), regulates an activity that is "an essential partof a larger regulation of economic activity." Lopez, 514 U.S. at 561-63,115 S. Ct. at 1631. As recounted above, Congress recognized the enormousimpact that violence against women has on women in the workplace, and assuch, VAWA, along with Title VII, can be seen as a part of a larger regulatoryeffort to eliminate gender-based violence as a barrier to job opportunities.Congress found that "current law provides a civil rights remedy forgender crimes committed in the workplace, but not for crimes of violencemotivated by gender committed on the street or in the home." H.R. Conf.Rep. No. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N. 1839, 1853.VAWA was meant to fill that gap.

Morrison and Crawford's reliance on the fact that VAWA, like § 922(q),does not have a jurisdictional restriction is unpersuasive for similar reasons.Lopez does not require that a statute contain a jurisdictional limit inorder to pass Commerce Clause scrutiny. See Olin Corp., 107 F.3d at 1510;United States v. Rybar, 103 F.3d 273, 285 (3rd Cir. 1996), cert. denied,-- U.S. --, 118 S. Ct. 46, 139 L.Ed.2d 13 (1997); Terry, 101 F.3d at 1418;Wall, 92 F.3d at 1449 n. 11; Wilson, 73 F.3d at 685. "If a jurisdictionalelement were critical to a statute's constitutionality, the Court in Lopezwould not have gone on to examine the Government's proffered rationalesfor the constitutionality of the gun possession statute." Terry, 101F.3d at 1418.

The core teaching of Lopez is simply that Congress must ensure that legislationenacted pursuant to its Commerce Clause authority reaches only activitiesthat "substantially affect interstate commerce." A jurisdictionalelement or Congressional findings assist a court in determining whethera regulated activity substantially affects interstate commerce. But neitheris necessary for constitutional validity. See Wright, 117 F.3d at 1269 (Congressneed not "place a jurisdictional element" in a statute or make"legislative findings connecting the regulated activity to interstatecommerce."). Although Congressional findings are not required, herewe do have abundant legislative findings evidencing that Congress did indeedensure that the regulated activity substantially affected interstate commerce.As noted above, we recently relied on far less detailed Congressional findingsto uphold a statute that did not regulate economic activities and had nojurisdictional element. Leshuk, 65 F.3d at 1111-12.

Finally, our holding that Congress had a rational basis to conclude thatviolence against women has a substantial effect on interstate commerce doesnot mean, as Morrison and Crawford contend, that acting pursuant to theCommerce Clause Congress can reach any activity, including divorces, child-support,and "diet and exercise habits." This argument ignores the yearsof hearings on the need for VAWA and the reams of congressional findingsmade in support of VAWA. It belittles the seriousness of the national problemthat discriminatory violence against women presents. It overlooks VAWA'sexplicit deference to State expertise: the statute's express restrictionto gender-motivated violent crimes is defined in part in reference to statelaw, and it prohibits jurisdiction over divorce, alimony, and child custodymatters. See 42 U.S.C. § 13981(e)(4).

Most importantly, this argument disregards the ineludible fact that ourrole is simply to determine if Congress had a rational basis for concludingthat a regulated activity "substantially affect[s] interstate commerce."Lopez, 514 U.S. at 560, 115 S. Ct. at 1630. After four years of hearingsand extensive legislative findings, Congress has adjudged that violenceagainst women substantially affects interstate commerce. It is "abundantlyclear that our job in this case is not to second-guess the legislative judgmentof Congress that" violence against women "substantially affectsinterstate commerce, but rather to ensure that Congress had a rational basisfor that conclusion." Bishop, 66 F.3d at 577. In light of Congress'findings, well supported by testimony and data, we hold that Congress hadsuch a rational basis in enacting VAWA.

We note that it is apparent that Congress took great care to detail itsfindings and support its conclusion that VAWA was within its commerce authority.The breadth of the record itself manifests that Congress understood itsduty to act only within its enumerated powers in this case, and took thatduty seriously. As the Supreme Court explained in Polish Nat'l Alliancev. NLRB, 322 U.S. 643, 650, 64 S. Ct. 1196, 1200, 88 L.Ed. 1509 (1944):
[Whether] the conduct of an enterprise affects commerce among the Statesis a matter of practical judgment, not to be determined by abstract notions.The exercise of this practical judgment the Constitution entrusts primarilyand very largely to the Congress, subject to the latter's control by theelectorate. Great power was thus given to the Congress: the power of legislationand thereby the power of passing judgment upon the needs of a complex society.Strictly confined though far-reaching power was given to this Court: thatof determining whether the Congress has exceeded limits allowable in reasonfor the judgment which it has exercised.
See also Lopez, 514 U.S. at 578, 115 S. Ct. at 1639 (Kennedy, J., concurring)(It is Congress' and the President's "obligation to preserve and protectthe Constitution in maintaining the federal balance . . . in the first andprimary instance."). In following our "[s]trictly confined"duty in this case, we must conclude that Congress has in no way "exceededlimits allowable in reason for the judgment which it has exercised."Polish Nat'l Alliance, 322 U.S. at 650, 64 S. Ct. at 1200. Congress actedwithin its Commerce Clause authority in enacting VAWA.17

IV.

To summarize, we hold that Brzonkala's complaint states a claim under TitleIX against Virginia Tech, and under the Violence Against Women Act againstMorrison and Crawford. Further, we hold that the Commerce Clause providesCongress with authority to enact the Violence Against Women Act. Accordingly,the judgments of the district court dismissing both the Title IX and ViolenceAgainst Women Act claims are reversed and the case is remanded for furtherproceedings.
No. 96-1814-REVERSED AND REMANDED.

No. 96-2316-REVERSED AND REMANDED.

1 "On appeal from an order granting amotion to dismiss under Fed. R. Civ. P. 12(b)(6), we accept as true thefacts alleged in the complaint." McNair v. Lend Lease Trucks, Inc.,95 F.3d 325, 327 (4th Cir.1996).
2 Brzonkala's complaint alleges that the Attorney General, who representedVirginia Tech, knew, or should have known, that Morrison's due process claimwas meritless under Virginia law because of Abrams v. Mary Washington College,No. CH93-193, slip op. at 4 (Cir. Ct. City of Fredricksburg, April 27, 1994).The state court in Abrams rejected an almost identical claim that a student'sdue process rights were violated when he was charged and tried under a sexualassault policy that was adopted after the incident. Id. at 4.
3 Brzonkala also pled a claim of disparate impact based upon Virginia Tech'spolicy of not automatically reporting allegations of rape to the police.Brzonkala does not press this theory on appeal. We deem it waived.
4 Virginia Tech makes a truncated argument, without reference to the complaintor any authority, that Brzonkala has not pled a hostile environment claimwith sufficient specificity. The district court "glean [ed] from [Brzonkala's]complaint an allegation that [Virginia Tech] had a hand in permitting ahostile school environment based on Brzonkala's gender." BrzonkalaI, 935 F. Supp. at 778. We agree that Brzonkala has properly pled a hostileenvironment claim. All that Brzonkala was required to plead was "'ashort and plain statement of the claim' that will give the defendant fairnotice of what the plaintiff's claim is and the grounds upon which it rests.. . . Following the simple guide of Rule 8(f) that 'all pleadings shallbe so construed as to do substantial justice,' we have no doubt that petitioners'complaint adequately set forth a claim and gave the respondents fair noticeof its basis." Conley v. Gibson, 355 U.S. 41, 47-48, 78 S. Ct. 99,103, 2 L.Ed.2d 80 (1957) (footnote omitted).
5 But see Smith v. Metro. Sch. Dist. Perry Township, 128 F.3d 1014 (7thCir. 1997) (recognizing that most other courts apply Title VII principlesto Title IX cases but refusing to apply Title VII's "knew or shouldhave known" standard to a Title IX claim).
6 After oral argument in this case, the Eleventh Circuit followed Rowinsky,see Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (11th Cir. 1997),but the Ninth Circuit flatly rejected the Rowinsky rationale. See Oona v.McCaffrey, 122 F.3d 1207 (9th Cir. 1997). As explained above, we, like theNinth Circuit, "have difficulty squaring Rowinsky's reasoning withthe Supreme Court's in Franklin" and our own circuit precedent, e.g.,Preston, 31 F.3d at 207, and Andrade, 88 F.3d at 261. See Oona, 122 F.3dat 1210.
7 Virginia Tech also argues that Brzonkala lacks standing to pursue injunctiverelief in her Title IX claim because she has left school and does not planto return. The record before us does not support Virginia Tech's claim thatBrzonkala will never again attend Virginia Tech. All that the complaintalleges is that Brzonkala did not return to Virginia Tech in the Fall of1995. Without a factual basis for believing that Brzonkala will not re-registerat Virginia Tech, we will not dismiss for mootness her claims for injunctiverelief.
8 Congress also expressly stated that Section 5 of the Fourteenth Amendmentauthorized enactment of VAWA. See 42 U.S.C. § 13981(a). In view ofour holding that VAWA is a valid exercise of Congress' power under the CommerceClause, we need not reach the question of whether the Fourteenth Amendmentalso provided authorization for VAWA.
9 Most of Congress's copious findings do not appear in the statute itself,but in applying rational basis review courts also consider congressionalcommittee findings. See Lopez, 514 U.S. at 562, 115 S. Ct. at 1631; Preseaultv. ICC, 494 U.S. 1, 17, 110 S. Ct. 914, 924-25, 108 L.Ed.2d 1 (1990) (citingHouse Report in discussion of congressional findings regarding effect oninterstate commerce of federal "rails-to-trails" statute); Hodel,452 U.S. at 277-80, 101 S. Ct. at 2360-62 (relying on committee reportsto uphold Congress's power to enact the Surface Mining Act); Hoffman v.Hunt, 126 F.3d 575, 586 (4th Cir. 1997) (relying upon a House Report touphold FACE).
10 House Conference Report 103-711, containing the express finding that"crimes of violence motivated by gender have a substantial adverseeffect on interstate commerce," was drafted by the House and SenateConference Committees on VAWA, and was passed along with VAWA by the Houseon August 21, 1994 and by the Senate on August 24, 1994. See Violence AgainstWomen § 5:42 (David Frazee et al. eds., 1997). Indeed, the findingsin Report 103-711 were part of the original text of VAWA and were removedto the conference report only to avoid cluttering the U.S.Code with "'congressionalfindings' that had no force of law." Id. § 5:40. VAWA, of course,was enacted before Lopez, when the necessity of expressly finding that regulatedactivity had a "substantial effect" upon commerce (rather thanjust an "effect") was not altogether clear. Thus, it is particularlytelling that in passing VAWA Congress found that gender-based violence againstwomen does "substantially affect" interstate commerce.
11 We and the ten other circuits to consider the matter have all appliedthe rational basis test to post-Lopez Commerce Clause challenges. See Hoffman,126 F.3d 575, 583-88 (stating and applying rational basis test); UnitedStates v. Knutson, 113 F.3d 27, 29 (5th Cir. 1997) (same); United Statesv. Parker, 108 F.3d 28, 30 (3rd Cir. 1997), cert. denied, -- U.S. --, 118S. Ct. 111, 139 L.Ed.2d 64 (1997) (same); United States v. Olin Corp., 107F.3d 1506, 1509 (11th Cir. 1997) (same); United States v. Bramble, 103 F.3d1475, 1482 (9th Cir. 1996) (same); Terry v. Reno, 101 F.3d 1412, 1416 (D.C.Cir. 1996), cert. denied, 520 U.S. 1264, 117 S. Ct. 2431, 138 L.Ed.2d 193(1997) (same); Proyect v. United States, 101 F.3d 11, 12 (2d Cir. 1996)(same); United States v. McHenry, 97 F.3d 125, 128 (6th Cir. 1996), cert.denied, 519 U.S. 1131, 117 S. Ct. 992, 136 L.Ed.2d 873 (1997) (same); UnitedStates v. Hampshire, 95 F.3d 999, 1001 (10th Cir. 1996), cert. denied, --U.S. --, 117 S. Ct. 753, 136 L.Ed.2d 690 (1997) (same); United States v.Kenney, 91 F.3d 884, 889 (7th Cir. 1996) (same); United States v. Dinwiddie,76 F.3d 913, 920 (8th Cir. 1996), cert. denied, -- U.S. --, 117 S. Ct. 613,136 L.Ed.2d 538 (1996) (same).
12 Indeed, post-Lopez, numerous courts have reiterated that such deferenceto congressional findings is required; "court[s] must defer to a congressionalfinding that a regulated activity affects interstate commerce, if thereis any rational basis for such a finding." Terry, 101 F.3d at 1416;Proyect, 101 F.3d at 12-13 (same); United States v. McKinney, 98 F.3d 974,979 (7th Cir. 1996) (same), cert. denied, 520 U.S. 1110, 117 S. Ct. 1119,137 L.Ed.2d 319 (1997); Hampshire, 95 F.3d at 1004 (same); United Statesv. Kim, 94 F.3d 1247, 1250 (9th Cir. 1996) (same); United States v. Bishop,66 F.3d 569, 577 (3d Cir. 1995), cert. denied, 516 U.S. 1066, 116 S. Ct.750, 133 L.Ed.2d 698 (1996) (same); Cheffer v. Reno, 55 F.3d 1517, 1520-21(11th Cir. 1995) (same); see also Knutson, 113 F.3d at 29-31 (upholding18 U.S.C. § 922(o) solely on the basis of "congressional findings"and noting that Lopez "made clear that federal Commerce Clause legislationcontinues to merit a high degree of judicial deference"); United Statesv. Monteleone, 77 F.3d 1086, 1091-92 (8th Cir. 1996) (upholding 18 U.S.C.§ 922(d) on the basis of "explicit Congressional findings").
13 Thus, it is unsurprising that "courts have resisted urgings to extendLopez beyond § 922(q)." United States v. Wall, 92 F.3d 1444, 1448(6th Cir. 1996), cert. denied, -- U.S. --, 117 S. Ct. 690, 136 L.Ed.2d 613(1997) (upholding 18 U.S.C. § 1955, which prohibits inter alia intrastateillegal gambling activities). Indeed, post-Lopez innumerable federal statuteshave been challenged on Commerce Clause grounds but not a single one hasbeen invalidated by a federal appellate court. See, e.g., Hoffman, 126 F.3d575, 582-88 (upholding 18 U.S.C. § 248, which prohibits interferencewith access to reproductive health clinics); United States v. Soderna, 82F.3d 1370, 1373-74 (7th Cir.), cert. denied, -- U.S. --, 117 S. Ct. 507,136 L.Ed.2d 398 (1996) (same); Dinwiddie, 76 F.3d at 919-21 (same); Terry,101 F.3d at 1415-18 (same); Wilson, 73 F.3d at 679-88 (same); Cheffer, 55F.3d at 1519-21 (same); Wright, 117 F.3d at 1268-1271 (upholding 18 U.S.C.§ 922(o), which prohibits intrastate possession of machine gun, andnoting that every circuit to consider the question had so held); UnitedStates v. Crump, 120 F.3d 462, 465-66 (4th Cir. 1997) (upholding 18 U.S.C.A.§ 924(c)(1), which prohibits use and carrying of a firearm during andin relation to a drug trafficking crime, and noting "all of the circuitsthat have considered the question" had upheld the statute in the faceof a Lopez challenge); Olin Corp., 107 F.3d at 1509-10 (upholding CERCLA,42 U.S.C. §§ 9601-9675); United States v. Allen, 106 F.3d 695,700-1 (6th Cir. 1997), cert. denied, (1997) (upholding 21 U.S.C. §860(a), the Drug Free School-Zones Act); United States v. Hawkins, 104 F.3d437, 439-40 (D.C. Cir. 1997), cert. denied, -- U.S. --, 118 S. Ct. 126,139 L.Ed.2d 76 (1997) (same); United States v. Wells, 98 F.3d 808, 810-11(4th Cir. 1996) (upholding 18 U.S.C. § 922(g), which prohibits possessionof a firearm by a felon, and noting ten other circuits that had upheld itsconstitutionality under Lopez); United States v. Genao, 79 F.3d 1333, 1335-37(2d Cir. 1996) (same); United States v. Tisor, 96 F.3d 370, 373-75 (9thCir. 1996), cert. denied, 519 U.S. 1140, 117 S. Ct. 1012, 136 L.Ed.2d 889(1997) (upholding congressional authority to prohibit intrastate possessionor sale of narcotics); Leshuk, 65 F.3d at 1111-12 (same); Bramble, 103 F.3dat 1479-82 (upholding the Eagle Protection Act, 16 U.S.C. § 668); UnitedStates v. Michael R., 90 F.3d 340, 343-45 (9th Cir. 1996) (upholding 18U.S.C. § 922(x)(2), which prohibits juvenile possession of a handgun);United States v. Lomayaoma, 86 F.3d 142, 144- 46 (9th Cir.), cert. denied,-- U.S. --, 117 S. Ct. 272, 136 L.Ed.2d 196 (1996) (upholding the IndianMajor Crimes Act, 18 U.S.C. § 1153).
14 In fact, State Attorneys General from forty-one states supported thepassage of VAWA. They told Congress: "Our experience as attorneys generalstrengthens our belief that the problem of violence against women is a nationalone, requiring federal attention, federal leadership, and federal funds."See Crimes of Violence Motivated by Gender: Hearing Before the Subcomm.on Civil and Constitutional Rights of the Senate Comm. on the Judiciary,103d Cong. 34-36 (1993) (Letter from State Attorneys General).
15 The studies referred to in the above quotation were largely State-sponsored,including the following: Administrative Office of the California CourtsJudicial Counsel, Achieving Equal Justice for Women and Men in the Courts(1990); Colorado Supreme Court Task Force on Gender Bias in the Courts,Gender & Justice in the Colorado Courts (1990); Connecticut Task Forceon Gender Justice and the Courts (1991); Florida Supreme Court Gender BiasStudy Commission, Report (1990); Supreme Court of Georgia, Gender and Justicein the Courts (1991); Illinois Task Force, Gender Bias in the Courts (1990);Maryland Special Joint Committee, Gender Bias in the Courts (1989); MassachusettsSupreme Judicial Court, Gender Bias Study of the Court System in Massachusetts(1989); Michigan Supreme Court Task Force on Gender Issues in the Courts,Final Report (1989); Minnesota Supreme Court Task Force for Gender Fairnessin the Courts, Final Report (1989); Nevada Supreme Court Gender Bias TaskForce, Justice For Women (1989); New Jersey Supreme Court Task Force, Womenin the Courts (1984); New York Task Force on Women in the Courts, Report(1986); Rhode Island Supreme Court Committee on Women in the Courts (1987);Utah Task Force on Gender and Justice, Report to the Utah Judicial Council(1990); Vermont Supreme Court and Vermont Bar Association, Gender and Justice:Report of the Vermont Task Force on Gender Bias in the Legal System (1991);Washington State Task Force, Gender and Justice in the Courts (1989); WisconsinEqual Justice Task Force, Final Report (1991). See S. Rep. No. 103-138,at 49 n.52.
16 Thus, we follow our sister circuits and hold that Lopez does not narrowCongress's Commerce Clause authority solely "to the regulation of commercialactors, and not private individuals who interfere with commercial activitiesin interstate commerce. To the contrary, the Court . . . [has upheld] statuteswhich penalize behavior substantially affecting interstate commerce withoutregard to the actor's commercial or private status." Cheffer, 55 F.3dat 1520 n. 6; see also Knutson, 113 F.3d at 30 (same); United States v.Hicks, 106 F.3d 187, 189 (7th Cir. 1997), cert. denied, 520 U.S. 1258, 117S. Ct. 2425, 138 L.Ed.2d 188 (1997) (same); Dinwiddie, 76 F.3d at 920-21(same); Terry, 101 F.3d at 1417 (same); Wilson, 73 F.3d at 684-85 (same).As Chief Judge Posner recently noted, the fact that a law was not explicitlymeant "to increase the gross national product by removing a barrierto free trade, but rather to protect personal safety and property rights,is irrelevant [because] . . . Congress can regulate interstate commercefor any lawful motive." Soderna, 82 F.3d at 1374 (citing Heart of AtlantaMotel, 379 U.S. at 256-57, 85 S. Ct. at 356-58). The Supreme Court itselfhas recognized, "[a]n enterprise surely can have a detrimental influenceon interstate or foreign commerce without having its own profit-seekingmotives." National Org. for Women, Inc. v. Scheidler, 510 U.S. 249,258, 114 S. Ct. 798, 804, 127 L.Ed.2d 99 (1994).
17 Once a court has decided that a Congressional act is within the commercepower the only remaining question is whether "the means chosen by"Congress are "reasonably adapted to the end permitted by the Constitution."Hodel, 452 U.S. at 276, 101 S. Ct. at 2360 (quoting Heart of Atlanta Motel,379 U.S. at 262, 85 S. Ct. at 360). No party contests this point, and wehold that VAWA's civil remedy is well within appropriate congressional means.

1 For its unexplained conclusion that violenceagainst women has a substantial effect on interstate commerce and thereforeis a valid exercise of Congress' Commerce Clause power, the majority properlydoes not rely on the findings Congress made to justify VAWA under Section5 of the Fourteenth Amendment. Thus, the majority distinguishes betweenthe findings made in support of Congress' exercise of its Section 5 powerand the findings made in support of Congress' exercise of its Commerce Clausepower, as does the Department of Justice. Compare Br. of Intervenor-AppellantUnited States at 4, 6-8 (detailing congressional findings on the "Impacton the National Economy and Interstate Commerce"), with id. at 9-16(detailing congressional findings on the "Bias in State Judicial Systems");compare also id. at 965-970 (arguing in reliance upon findings recited at4-8 that VAWA is a valid exercise of Congress' power under the CommerceClause), with id. at 961-965 (arguing in reliance upon findings recitedat 9-16 that VAWA is a valid exercise of Congress' power under Section 5).It may be, as the Department of Justice contends, that congressional findingsthat the civil rights of women are being violated bear on the question ofwhether a statute impermissibly encroaches on traditional state functions.See Br. for Intervenor-Appellant United States at 32 ("An exerciseof Commerce Clause power cannot plausibly be invalidated on the basis offederalism concerns where the declared purpose of the statute, supportedby extensive legislative evidence, is to secure the civil rights the stateshave failed to protect." (emphasis added)). But, as the Departmentand the majority both recognize, it would be untenable to hold that suchfindings even bear on, much less largely resolve, the threshold questionof whether violence against women has an effect on interstate commerce atall.
2 The majority cites to only one other sentence from the four years of congressionaldebate in support of its holding, and that sentence from a Senate committeereport does not even purport to find that gender-motivated violence substantiallyaffects interstate commerce (although the majority seems to presume thatit does). See id. at 967 ("Gender-based crimes and the fear of gender-basedcrimes restricts movement, reduces employment opportunities, increases healthexpenditures, and reduces consumer spending, all of which affect interstatecommerce and the national economy."). The sentence speaks more to theeffects of such violence on the economy in general than on interstate commerce,in any event.
3 So far afield is the majority's reasoning from that of the Supreme Courtin Lopez, that the majority all but holds that the character of legislationas "economic" or "noneconomic" is irrelevant under Lopez.See ante at 972 ("The Lopez Court did not strike down § 922(q)because it regulated non-economic activity. The Court invalidated §922(q) because neither Congress nor the Government convinced the Court thatthere was a rational basis for concluding that possession of a gun in aschool zone substantially affected interstate commerce." (citationomitted)); id. ("Even if the regulated activity itself had to havean economic nexus . . .").

APPENDIX C

UNITED STATES DISTRICT COURT
W.D. VIRGINIA
ROANOKE DIVISION

Civil Action No. 95-1358-R

CHRISTY BRZONKALA, PLAINTIFF

v.

VIRGINIA POLYTECHNIC AND STATE UNIVERSITY,
ET AL., DEFENDANTS

July 26, 1996

MEMORANDUM OPINION

KISER, Chief Judge.

On March 1, 1996, Christy Brzonkala filed an amended complaint allegingviolations of Title IX of the Education Amendment Act, 20 U.S.C. §1681, et seq., of Title III of the Violence Against Women Act, 42 U.S.C.§ 13981 ("VAWA"), and of various state laws. Brzonkala broughtclaims against Virginia Polytechnic Institute & State University ("VPI"),William Landsidle in his capacity as Comptroller of the Commonwealth, andthree VPI football players, Antonio Morrison, James Crawford, and CornellBrown.
I dismissed the claims against VPI, William Landsidle, and Cornell Brown,and now I will consider the claims against Morrison and Crawford. Only theVAWA and some state law claims remain.

I. Alleged Facts

Brzonkala is an adult female who resides in Fairfax, Virginia. She attendedVPI where she was a "student athlete" and a prospect for the women'ssoftball team. Morrison and Crawford are adult males. They attend VPI wherethey are members of the all-male football team. On the night of September21, 1994 and the morning of the next day, Brzonkala was sexually assaultedin a room on the third floor of her dormitory by two men whom she and HopeHandley, another female student, had met less than a half-hour earlier andwhose identities she knew only by given names and by their status as footballteam members. Brzonkala alleges that the two men forced her to have sexualintercourse by threat and intimidation and through the use of Brzonkala's"mental incapacity and physical helplessness." She alleges thatthe two men's acts "were motivated wholly by discriminatory animustoward her gender and were not random acts of violence." Brzonkalareported that she was not inebriated at the time of the assaults. Aboutfive months later, Brzonkala learned that the assailants were Morrison andCrawford.

On September 21, Brzonkala, Handley, Morrison, and Crawford were in a roomon the third floor of Brzonkala's dormitory. Handley and Crawford left theroom following fifteen minutes of conversation, and Morrison immediatelyrequested intercourse with Brzonkala. Brzonkala audibly told Morrison "no"twice. When Brzonkala rose to leave, Morrison forced her face-up onto abed, pushed her down by her shoulders, and disrobed her. Morrison pinnedher down by her elbows with his hands, pressed his knees against her legs,and forced her to submit to vaginal intercourse. Brzonkala attempted topush Morrison off. Then, before Brzonkala could recover, Crawford came backinto the room, exchanged places with Morrison, and forced Brzonkala to submitto vaginal intercourse by pinning down her arms and placing his knees againsther legs. Again before Brzonkala could recover, Morrison exchanged placeswith Crawford and forced Brzonkala to submit to vaginal intercourse a thirdtime. Afterwards, Morrison said to Brzonkala, "You better not haveany fucking diseases." Neither Morrison nor Crawford used a condom.

In February 1995, Brzonkala recognized Morrison and Crawford as the twomen who forced her to submit to intercourse. Prior to this identification,Morrison announced publicly in the dormitory's dining hall and in the presenceof VPI student Charlotte Wachter, "I like to get girls drunk and fuckthe shit out of them." At the end of April 1995, Brzonkala filed acomplaint against Morrison and Crawford under VPI's Sexual Assault Policy.After Brzonkala filed her complaint, she learned that a VPI student overheardan unidentified male VPI athlete advise Crawford that he should have "killedthe bitch."

In the first hearing, Morrison admitted the sexual contact and admittedthat Brzonkala told him "no" twice. Crawford confirmed that Morrisonhad sexual conduct with Brzonkala and testified that Brzonkala was "reallydrunk" when she arrived in the room. Crawford denied that he had sexualcontact with Brzonkala. The VPI judicial committee found Morrison guiltyof sexual assault and suspended him from school for two semesters. The committeefound insufficient evidence to take action against Crawford. In May 1995,Morrison appealed the committee's sanction, and an appeals officer upheldthe sanction.

During a second hearing, the judicial committee found Morrison guilty ofabusive conduct and reimposed the sanction of an immediate two-year suspension.Morrison appealed the result, and, without notice to Brzonkala, VPI setaside the sanction against Morrison. Morrison returned to VPI for the Fall1995 semester. Brzonkala learned through a November 30, 1995 newspaper articlethat the judicial committee at the second hearing had actually found Morrisonguilty of a reduced charge of "using abusive language." BecauseMorrison would be present on the VPI campus during the Fall 1995 semester,Brzonkala feared for her personal safety and canceled her plan to returnto VPI for the Fall semester.

II. Statute

42 U.S.C. § 13981. Civil Rights

(a) Purpose

Pursuant to the affirmative power of Congress to enact this part under section5 of the Fourteenth Amendment to the Constitution, as well as under section8 of Article I of the Constitution, it is the purpose of this part to protectthe civil rights of victims of gender motivated violence and to promotepublic safety, health, and activities affecting interstate commerce by establishinga Federal civil rights cause of action for victims of crimes of violencemotivated by gender.

(b) Right to be free from crimes of violence

All persons within the United States shall have the right to be free fromcrimes of violence motivated by gender (as defined in subsection (d) ofthis section).

(c) Cause of action

All persons (including a person who acts under color of any statute, ordinance,regulation, custom, or usage of any State) who commits a crime of violencemotivated by gender and thus deprives another of the right declared in subsection(b) of this section shall be liable to the party injured, in an action forthe recovery of compensatory and punitive damages, injunctive and declaratoryrelief, and such other relief as a court may deem appropriate.

(d) Definitions

For purposes of this section--

(1) the term "crime of violence motivated by gender" means a crimeof violence committed because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender; and

(2) the term "crime of violence" means--
(A) an act or series of acts that would constitute a felony against theperson or that would constitute a felony against property if the conductpresents a serious risk of physical injury to another, and that would comewithin the meaning of State or Federal offenses described in section 16of Title 18, whether or not those acts have actually resulted in criminalcharges, prosecution, or conviction and whether or not those acts were committedin the special maritime, territorial, or prison jurisdiction of the UnitedStates; and
(B) includes an act or series of acts that would constitute a felony describedin subparagraph (A) but for the relationship between the person who takessuch action and the individual against whom such action is taken.

(e) Limitation and procedures
(1) Limitation
Nothing in this section entitles a person to a cause of action under subsection(c) of this section for random acts of violence unrelated to gender or foracts that cannot be demonstrated, by a preponderance of the evidence, tobe motivated by gender (within the meaning of subsection (d) of this section).

(2) No prior criminal action
Nothing in this section requires a prior criminal complaint, prosecution,or conviction to establish the elements of a cause of action under subsection(c) of this section.
(3) Concurrent jurisdiction
The Federal and State courts shall have concurrent jurisdiction over actionsbrought pursuant to this part.
(4) Supplemental jurisdiction
Neither section 1367 of Title 28 nor subsection (c) of this section shallbe construed, by reason of a claim arising under such subsection, to conferon the courts of the United States jurisdiction over any State law claimseeking the establishment of a divorce, alimony, equitable distributionof marital property, or child custody decree.

III. Issues

Two issues are involved: (1) whether the complaint sufficiently states aclaim by Fed. R. Civ. P. 12(b)(6) standards, and, if so, (2) whether VAWAis constitutional.

IV. Whether Brzonkala States a Claim

A. Standard

Rule 12(b)(6) dismissals are generally disfavored and only granted whenit appears beyond doubt that a plaintiff can prove no set of facts in supportof its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80 (1957). I may only test plaintiff'scomplaint for any legal deficiency and must construe the factual allegationsin a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U. S.232, 94 S. Ct. 1683, 40 L.Ed.2d 90 (1974); Schatz v. Rosenberg, 943 F.2d485, 489 (4th Cir. 1991), cert. denied, 503 U. S. 936, 112 S. Ct. 1475,117 L.Ed.2d 619 (1992).

B. Analysis

The sticking point in determining if Brzonkala sufficiently stated a VAWAclaim is whether she has sufficiently alleged that the rape was "motivatedby gender." A crime "motivated by gender" is defined as acrime "committed because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender." See 42U.S.C. § 13981(d)(1).

Defendants argue that Brzonkala failed the liberal pleading standards ofFed. R. Civ. P. 8. "A pleading which sets forth a claim for relief. . . shall contain . . . a short and plain statement of the claim showingthat the pleader is entitled to relief, . . . ." Fed. R. Civ. P. 8(a)."Each averment of a pleading shall be simple, concise, and direct.No technical forms of pleading or motions are required." Fed. R. Civ.P. 8(e)(1).
The legislative history behind VAWA sheds some light on the proof requirementswhich, in turn, shed some light on the pleading requirements. "Proofof 'gender-motivation' under [T]itle III should proceed in the same waysproof of race or sex discrimination proceeds under other civil rights laws.Judges and juries will determine 'motivation' from the 'totality of thecircumstances' surrounding the event." S. Rep. No. 197, 102d Cong.,2d Sess. 50 (1991). "Bias, in short, can be proved by circumstantialas well as indirect evidence." S. Rep. No. 138, 103d Cong., 1st Sess.52 (1993).
Generally accepted guidelines for identifying hate crimes may also be usefulin assessing whether the circumstances show gender-motivation. The followingcharacteristics are used to determine whether a crime is bias related: languageused by the perpetrator; the severity of the attack (including mutilation);the lack of provocation; previous history of similar incidents; absenceof any other apparent motive (battery without robbery, for example); commonsense. . . .
S. Rep. No. 197, 102d Cong., 2d Sess. 50 n. 72. The statute in question"requires subjective proof on a case-by-case basis that the criminalwas motivated by a bias against the victim's gender. Whether a particularcrime is, in fact, gender-motivated will be a question of fact for the courtor jury to decide. . . ." S. Rep. No. 138, 103d Cong., 1st Sess. 49-50.

In support of her VAWA claim, Brzonkala makes the conclusory statement thatMorrison and Crawford's actions "were motivated wholly by discriminatoryanimus toward her gender and were not random acts of violence." Sucha conclusory statement is likely insufficient to state a claim. Cf. Simpsonv. Welch, 900 F.2d 33 (4th Cir. 1990). However, Brzonkala has alleged otherfacts that support this conclusory statement.

Brzonkala alleges that she had met Morrison and Crawford less than a half-hourbefore she was raped, that Morrison and Crawford participated in a gangrape of Brzonkala, Morrison having sex with her one time before and onetime after Crawford had sex with her, that neither Morrison nor Crawfordused a condom, that, after raping her the second time, Morrison stated toBrzonkala, "You better not have any fucking diseases," and finallythat, within about five months after the rapes, Morrison announced publiclyin the dormitory's dining hall and in the presence of at least one woman,"I like to get girls drunk and fuck the shit out of them."

I need not decide whether the allegation of the rapes alone is sufficientto state a claim. All rapes are not the same, and the characteristics ofthe rapes here alleged, when compared to other rapes, indicate that genderanimus more likely played a part in these rapes than in some other typesof rape. First, the assault involved a gang rape. While any rape is egregious,all other factors the same, gang rape generally is more egregious than one-on-onerape. Where, as here, two men rape one woman, this indicates a conspiracyof disrespect for that woman. Second, these rapes fall somewhere in betweenstranger rape and date rape, and are probably closer to stranger rape. Again,while any rape is egregious, stranger rape and rapes such as the one inquestion generally are more egregious than date rape. Additionally, strangerrape generally more likely than date rape involves gender animus. For example,date rape could involve a misunderstanding and is often less violent thanstranger rape. By the facts alleged, the case at hand does not involve anymisunderstanding. Date rape could also involve a situation where a man'ssexual passion provokes the rape by decreasing the man's control. Here thereis no indication that sexual passion caused Morrison to initiate intercourse.Finally, date rape could involve in part disrespect for the victim as aperson, not as a woman; in date rape the perpetrator knows the victim'spersonality to some extent. In the case at hand, the facts indicate thatMorrison and Crawford had little if any knowledge of Brzonkala's personality.Therefore, by process of elimination, an inference of gender animus is morereasonable in this situation than in some other rapes.

In Morrison's case, two facts other than the characteristics of the rapespoint to gender animus. After having intercourse with Brzonkala for thesecond time, Morrison stated, "You better not have any fucking diseases."While the relevance of this to gender animus is questionable, this furtherevidences the disrespect that Morrison had for Brzonkala, irrespective ofany knowledge of her personality. More importantly and more relevant togender animus, Morrison stated at a later date, in the presence of at leastone woman, "I like to get girls drunk and fuck the shit out of them."Although Morrison did not state that he likes to rape women, his statementreflects that he has a history of taking pleasure from having intercoursewith women without their sober consent. This statement indicates disrespectfor women in general and connects this gender disrespect to sexual intercourse,and, at least, raises an issue to be pursued in discovery. Although thestatement is relevant without such an inference, the reasonable inferencethat Brzonkala was intoxicated at the time of the rapes further links Morrison'sstatement to the alleged rapes at issue. While Brzonkala alleges that she"reported that she was not inebriated at the time of the assaults,"she also alleges that Morrison raped her "through the use of [her]mental incapacity." Crawford stated that Brzonkala was "reallydrunk."

Congress obviously intended this statute to apply to rapes motivated bygender bias. Morrison's actions outwardly evidence gender animus more thanmany, if not most, situations of rape (at least before discovery has revealedany other evidence of gender animus). The purpose of the statute would beeviscerated if, to state a claim, a plaintiff had to allege, for example,that the defendant raped her and stated, "I hate women." Defendantsindicate that plaintiffs must allege facts such as an ongoing series ofsexual assaults by the defendant. But, as plaintiff points out, she hasnot had opportunity to take discovery to uncover any possible prior similarassaults. Additionally, I question whether the alleged sexual assault plusa statement indicating that Morrison enjoys having intercourse with womenagainst their sober consent is any less indicative of gender animus thanan allegation of a series of sexual assaults.

Therefore, at least against Morrison, Brzonkala has successfully stateda claim for a violation of 42 U.S.C. § 13981. The characteristics ofthe rape combined with Morrison's statements are sufficient at least tomeet the minimal federal pleading requirements. Whether Brzonkala can provethe allegations in her complaint by a preponderance of the evidence is notcurrently an issue before the Court. Deciding whether a claim is statedagainst Crawford is unnecessary considering my decision on the constitutionalityof VAWA.

V. Whether VAWA (42 U.S.C. § 13981) Is Constitutional

If VAWA is constitutional, it must be based either on the Commerce Clauseor the Enforcement Clause of the Fourteenth Amendment.

A. Commerce Clause

1. Commerce Power Generally

Article I of the U. S. Constitution authorizes Congress "[t]o regulatecommerce . . . among the several States. . . ." U. S. Const., art.I, § 8, cl. 3. Plaintiff 1 argues that VAWA is constitutional becauseit addresses conduct that substantially affects interstate commerce. InUnited States v. Lopez, [514] U. S. [549], 115 S. Ct. 1624, 131 L.Ed.2d626 (1995), the Supreme Court considered the constitutionality of former18 U.S.C. § 922(q), the Gun-Free Zone Act of 1990, which forbade "'anyindividual knowingly to possess a firearm at a place that the individualknows, or has reasonable cause to believe, is a school zone.'" Id.at --, 115 S. Ct. at 1626 (quoting former 18 U.S.C. § 922(q)(1)(A)(1988 ed., Supp. V)). Specifically, the Court considered whether this actwas a permissible use of Congress's commerce power.

In answering this issue, the Court considered important that "the scopeof the interstate commerce power 'must be considered in the light of ourdual system of government and may not be extended so as to embrace effectsupon interstate commerce so indirect and remote that to embrace them, inview of our complex society, would effectually obliterate the distinctionbetween what is national and what is local and create a completely centralizedgovernment.' "Id. at -- - --, 115 S. Ct. at 1628-1629 (quoting NLRBv. Jones & Laughlin Steel Corp., 301 U. S. 1, 37, 57 S. Ct. 615, 624,81 L.Ed. 893 (1937)). The Court has "heeded that warning" andhas "undertaken to decide whether a rational basis existed for concludingthat a regulated activity sufficiently affected interstate commerce."Id. at --, 115 S. Ct. at 1629 (citing among other cases Hodel v. VirginiaSurface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-280, 101S. Ct. 2352, 2360-2362, 69 L.Ed.2d 1 (1981)). The Supreme Court has not"'declared that Congress may use a relatively trivial impact on commerceas an excuse for broad general regulation of state or private activities.'"Id. (quoting Maryland v. Wirtz, 392 U. S. 183, 197 n. 27, 88 S. Ct. 2017,2024 n. 27, 20 L.Ed.2d 1020 (1968)). "Rather, '[t]he Court has saidonly that where a general regulatory statute bears a substantial relationto commerce, the de minimis character of individual instances arising underthat statute is of no consequence.'" Id. (quoting Wirtz, 392 U. S.at 197 n. 27, 88 S. Ct. at 2024 n. 27).

Under its commerce power, Congress may regulate three broad categories ofactivity. First, Congress may regulate the use of the channels of interstatecommerce. Second, Congress may regulate and protect the instrumentalitiesof interstate commerce, or persons or things in interstate commerce, eventhough the threat may come only from intrastate activities. Third, Congressmay regulate those activities having a substantial relation to interstatecommerce. Id. at -- - --, 115 S. Ct. at 1629-1630 (citations omitted). InLopez, the Court concluded that, in order to qualify for the third category,the regulated activity must "substantially affect" interstatecommerce. Id. at --, 115 S. Ct. at 1630.

2. First Two Categories

As in Lopez, in the case at hand the first two categories can be easilyeliminated. VAWA is not "a regulation of the use of the channels ofinterstate commerce, nor is it an attempt to prohibit the interstate transportationof a commodity through the channels of commerce." Cf. Lopez, 514 U.S. at --, 115 S. Ct. at 1630. Also, VAWA is not a regulation by which Congresshas sought to protect an instrumentality of interstate commerce or a thingin interstate commerce. Cf. id. Admittedly women often travel between states,as do their abusers and assailants, but certainly more is required to qualifyfor the commerce power. Therefore, if VAWA is a permissible exercise ofpower under the Commerce Clause, it must qualify for the third category:it must regulate an activity that has a substantial effect on interstatecommerce.

3. Lopez's Analysis of Substantial Effect on Interstate Commerce

The effects-analysis of the majority decision in Lopez can be broken downinto four parts. First, the Court noted the relevance of the nature of theregulated activity; the Court distinguished that case, dealing with theregulation of intrastate possession of guns, from cases dealing with theregulation of an intrastate activity which is economic in nature. Second,the Court considered whether § 922(q) had any jurisdictional elementto ensure in individual cases that the firearm possession would affect interstatecommerce. Third, the Court considered the importance of legislative history.And finally the Court considered the practical implications of acceptingthe Government's argument that the economic impact of the regulated activityhad sufficient effects on interstate commerce to sustain the regulation.

a. Nature of Regulated Activity

In Lopez, the Court noted that Wickard v. Filburn, 317 U. S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), was perhaps the most far-reaching example ofCommerce Clause authority over intrastate activity and that Wickard involvedeconomic activity in a way that the possession of a gun in a school zonedoes not. Lopez, 514 U. S. at -- - --, 115 S. Ct. at 1630-1631. In Wickard,Roscoe Filburn operated a small farm in Ohio, on which he raised 23 acresof wheat for the year involved. He would sow winter wheat in the fall, harvestit in July, then sell some of it, feed some of it to his farm animals, andkeep the remainder for seeding future crops. Wickard, 317 U. S. at 114,63 S. Ct. at 84. The Secretary of Agriculture assessed a penalty againstFilburn under the Agricultural Adjustment Act of 1938, because Filburn hadharvested about 12 more acres of wheat than the Act permitted. Id. at 114-115, 63 S. Ct. at 84. The Court sustained the application of the Act tothis activity, stating that home-grown wheat "competes with wheat incommerce," because "it supplies a need of the man who grew itwhich would otherwise be reflected by purchases in the open market."Id. at 128, 63 S. Ct. at 91.

The Lopez Court differentiated § 922(q) from the statute in Wickard,because
[s]ection 922(q) is a criminal statute that by its terms has nothing todo with "commerce" or any sort of economic enterprise, howeverbroadly one might define those terms. Section 922(q) is not an essentialpart of a larger regulation of economic activity, in which the regulatoryscheme could be undercut unless the intrastate activity were regulated.It cannot, therefore, be sustained under our cases upholding regulationsof activities that arise out of or are connected with a commercial transaction,which viewed in the aggregate, substantially affects interstate commerce.
Lopez, 514 U. S. at -- - --, 115 S. Ct. at 1630-1631 (footnote omitted).In effect, the Court separated the Commerce Clause analysis between situationswhere regulated intrastate activity is economic in nature and situationswhere the intrastate activity is not. After Lopez, cases such as Wickard,where regulated intrastate activity is economic in nature, do not controlcases where regulated intrastate activity is not economic. At the least,after Lopez, whether intrastate activity is economic in nature is a veryrelevant consideration.

b. Individual Case Inquiry

In the next step in Lopez, the Court considered important that § 922(q)did not contain a "jurisdictional element which would ensure, throughcase-by-case inquiry, that the firearm possession in question affects interstatecommerce." Id. at --, 115 S. Ct. at 1631. Section 922(q) had no jurisdictionalelement which limited "its reach to a discrete set of firearm possessions"that had "an explicit connection with or effect on interstate commerce."Id.

c. Relevance of Legislative History

The Court noted that the Government conceded that no express congressionalfindings were presented regarding the effects upon interstate commerce ofgun possession in a school zone and that "to the extent that congressionalfindings would enable [the Court] to evaluate the legislative judgment thatthe activity in question substantially affected interstate commerce, eventhough no such substantial effect was visible to the naked eye, they arelacking here." Id. at -- - --, 115 S. Ct. at 1631-1632. The Court,however, also stated that such findings were not necessary. Id. at --, 115S. Ct. at 1631 (citations omitted). The Court further noted that Congresshad made findings under an amended § 922(q). Id. at -- n. 4, 115 S.Ct. at 1632 n. 4. At oral argument, the Government stated regarding thecongressional findings, "[W]e're not relying on them in the strictsense of the word, but we think that at a very minimum they indicate thatreasons can be identified for why Congress wanted to regulate this particularactivity." Id. From this statement, the Court surmised that "[t]heGovernment [did] not rely upon these subsequent findings as a substitutefor the absence of findings in the first instance." Id.

d. Practical Implications

The Court addressed the practical implications of accepting as sufficientthe Government's argued effects on commerce. Id. at -- - --, 115 S. Ct.at 1632-1634.
The Government argued that
possession of a firearm in a school zone may result in violent crime andthat violent crime can be expected to affect the national economy in twoways. First, the costs of violent crime are substantial, and, through themechanism of insurance, those costs are spread throughout the population.Second, violent crime reduces the willingness of individuals to travel toareas within the country that are perceived to be unsafe. The Governmentalso argues that the presence of guns in schools poses a substantial threatto the educational process by threatening the learning environment. A handicappededucational process, in turn, will result in a less productive citizenry.That, in turn, would have an adverse effect on the Nation's economic well-being.As a result, the Government argues that Congress could rationally have concludedthat § 922(q) substantially affects interstate commerce.
Id. at --, 115 S. Ct. at 1632.

The Court observed that, if the regulation was constitutional based on theseeffects, then Congress's power would be extended too far. Under the Government's"costs of crime" reasoning, Congress could regulate "notonly all violent crime, but all activities that might lead to violent crime,regardless of how tenuously they relate to interstate commerce." Id.The Court stated that, under the Government's "national productivity"reasoning, Congress could regulate "any activity that [Congress] foundwas related to the economic productivity of individual citizens: familylaw (including marriage, divorce, and child custody), for example."Id. The Court concluded, "Thus, if we were to accept the Government'sarguments, we are hard-pressed to posit any activity by an individual thatCongress is without power to regulate." Id. Under the "threatto learning" reasoning, Congress could directly regulate family lawissues and education. Id. at -- - --, 115 S. Ct. at 1632-1633.

4. Application of Lopez's Substantial Effects Analysis to the Case at Hand

Congressional findings in support of VAWA reveal that violence against womenis prevalent, and the Senate Report states that
[g]ender-based violent crimes meet the modest threshold required by theCommerce Clause. Gender-based crimes and fear of gender-based crimes restrictsmovement, reduces employment opportunities, increases health expenditures,and reduces consumer spending, all of which affect interstate commerce andthe national economy. Gender-based violence bars its most likely targets-women-from full participation in the national economy. For example, studiesreport that almost 50 percent of rape victims lose their jobs or are forcedto quit in the aftermath of the crime. Even the fear of gender-based violenceaffects the economy because it deters women from taking jobs in certainareas or at certain hours that pose a significant risk of such violence.
S. Rep. 138, 103d Cong., 1st Sess. 54 (1993). Notably, the Lopez Court stated,"'[S]imply because Congress may conclude that a particular activityaffects interstate commerce does not necessarily make it so.'" Lopez,514 U. S. at -- n. 2, 115 S. Ct. at 1629 n. 2 (quoting Hodel v. VirginiaSurface Mining and Reclamation Assn., Inc., 452 U. S. 264, 311, 101 S. Ct.2389, 2391, 69 L.Ed.2d 1 (1981) (Rhenquist, J., concurring)). "'Whetherparticular operations affect interstate commerce sufficiently to come underthe constitutional power of Congress to regulate them is ultimately a judicialrather than a legislative question, and can be settled finally only by thisCourt.'" Id. (quoting Heart of Atlanta Motel v. United States, 379U. S. 241, 273, 85 S. Ct. 348, 366, 13 L.Ed.2d 258 (1964)). This is particularlytrue where, subsequent to the Senate's above finding, the "modest thresholdrequired by the Commerce Clause" has become less modest. The HouseConference found:
[C]rimes of violence motivated by gender have a substantial adverse effecton interstate commerce, by deterring potential victims from traveling interstate,from engaging in employment in interstate business, and from transactingwith business, and in places involved, in interstate commerce; crimes ofviolence motivated by gender have a substantial adverse effect on interstatecommerce, by diminishing national productivity, increasing medical and othercosts, and decreasing the supply of and the demand for interstate products.
H.R.Rep. No. 711, 103d Cong., 2d Sess. 385 (1994), U. S. Code Cong. &Admin. News 1801, 1853.

The differences between Lopez and the case at hand are insignificant, andthe similarities are significant. Arguably the following three differencesbetween the case at hand and Lopez render Lopez's logic inapplicable tothe case at hand: (1) that VAWA is civil, and the Lopez statute was criminal,(2) that there are legislative findings here but not in Lopez, and (3) thatfewer steps of causation exist between the VAWA regulated activity and commercethan § 922(q)'s regulated activity and commerce. The similarities include(1) the criminal nature of both statutes, (2) the non-commercial natureof both statutes, (3) the lack of a jurisdictional requirement that someeffect on interstate commerce is involved in each case, (4) the remotenessof any effect on commerce, and (5) the excessive congressional power thatwould logically follow from permitting both statutes based on the CommerceClause.

a. Possible Differences

A close look at the possible differences reveals that they are insignificantand that the possible differences often point to similarities instead ofdifferences. First, whereas no congressional findings were before the LopezCourt connecting the relevant activity to interstate commerce, congressionalfindings which support that violence against women affects interstate commerceare currently before this Court. As the Lopez Court pointed out, however,such findings are not necessary. Id. at --, 115 S. Ct. at 1631 (citationsomitted). The Court only found the missing findings relevant in that thefindings would have enabled the Court "to evaluate the legislativejudgment that the activity in question substantially affected interstatecommerce, even though no such substantial effect was visible to the nakedeye. . . ." Id. at --, 115 S. Ct. at 1632. Having said that, the Courtnoted that the amended § 922(q) included congressional findings regardingthe effects upon interstate and foreign commerce of firearm possession inand around schools. Id. at -- n. 4, 115 S. Ct. at 1632 n. 4. If the Courtfelt that such findings were extremely important, i.e. that the Court didnot have a sufficient awareness of the effects absent the findings, thenthe Court could have considered the added congressional findings even inthe face of the Government's statement that it was not relying on the addedfindings "in the strict sense of the word," but that "ata very minimum [the findings] indicate that reasons can be identified forwhy Congress wanted to regulate this particular activity." Id. Thefact that an attorney made an ambiguous statement possibly indicating aminimal reliance on congressional findings does not preclude a court fromconsidering these findings.

Regardless, even absent the express congressional findings, the Lopez Courthad a sufficient knowledge of interstate commercial effects to consider.The commerce power is based on a reasonable effect on interstate commerce,not on Congress's perceived effect on commerce. While the effects on commercein Lopez were not obvious because they were so tenuous, undoubtedly theCourt could fairly easily infer the effects in order to make a reasonabledetermination whether these effects were substantially related to commerce.Also, as listed in the appendix to Lopez, the Court had much authority toconsider regarding the issue. See id. at -- - --, 115 S. Ct. at 1665- 1671.More importantly, the Government actually presented the commercial effectsin its argument, and the Court considered whether these sufficed.

In sum, the fact that the effects need not be inferred in the case at handis not a very important difference. Congress need not make findings, theLopez Court had access to Congress's added findings, the Lopez Court hada reasonable appreciation of the effects via reasonable inferences, theauthority in the appendix, and the Government's argument, and the LopezCourt thoroughly considered the effects presented. The fact that Congress'sfindings were not stressed in the Government's argument is somewhat incidental,and it appears that the Court mentioned this simply as one feather withwhich to fill an already full pillow. While findings will often be helpful,findings are not necessary for a determination of whether a rational relationto interstate commerce exists.

Second, the statute at issue is civil, whereas Lopez involved a criminalstatute. This is technically a correct statement, however, VAWA is criminalin nature. VAWA was designed to address problems in the state criminal justicesystem, and, in attempting to supplement deficiencies in the state criminalsystem, it creates a civil cause of action that seeks to vindicate a criminalact. It provides a civil remedy for a "crime of violence," whichis defined in part as "an act or series of acts that would constitutea felony against the person or that would constitute a felony against propertyif the conduct presents a serious risk of physical injury to another."42 U.S.C. § 13981(d)(2)(A). A person liable under the act "shallbe liable to the party injured, in an action for the recovery of compensatoryand punitive damages, injunctive and declaratory relief, and such otherrelief as a court may deem appropriate." 42 U.S.C. § 13981(c).Regardless, whether a statute based on the Commerce Clause is civil or criminalis of limited relevance. With statutes regulating intrastate activities,the primary concern is whether the activity is economic. Other than theeconomic nature of the activity to be regulated, the focus is not on thenature of the activity but on the related issue of the effects of the regulatedactivity on interstate commerce.

Third, the steps of causation in the instant case are fewer than in Lopez.At best, an analysis of the steps of causation is an inexact science; thenumber of steps depends on how each step is defined, and a greater numberof steps does not always indicate greater remoteness. Certainly this shouldnot be the method for resolving Commerce Clause issues. In Lopez, the Governmentargued and the Court considered two general chains of causation. First,the possession of a firearm in a school zone may result in violent crimewhich may affect the national economy through either increased nationwidecosts or a reduction in the willingness of individuals to travel to areaswithin the country that are perceived to be unsafe. Second, guns pose asubstantial threat to the educational process by threatening the learningenvironment, and a handicapped educational environment leads to a less productivecitizenry which affects the national economy.

While the problems inherent in a step of causation analysis are compoundedwhen comparing two different laws, comparing the steps in the case at handto Lopez is helpful. Compared with Lopez's first chain of causation, thecase at hand possibly involves one less step than the postulated effectsin Lopez. In the case at hand, the regulated activity is the violent crime,whereas in Lopez the regulated activity was an act that could lead to aviolent crime. This distinction is not enough to apply the commerce powerin the case at hand. The step from possession of a firearm in schools tothe commission of a violent crime is a small step. Undoubtedly, often possessionof a firearm leads to violent crime. Also, no violent crime is necessaryto create an effect on commerce; the fear created solely by the possessionof the guns undoubtedly somewhat affects commerce. Finally, the individualsteps that each case has in common may be longer in the case at hand thanin Lopez.

Lopez's second chain of causation is similar to plaintiff's argument thatviolent crimes against women affect the productivity of the nation by distractingwomen and by removing women from the workplace. Similarly, guns at schoolsaffect the productivity of the nation by threatening the learning environment.It is a fair inference that guns at schools are distracting and dissuademany students from attending schools. This chain also involves one lessstep. Guns affect learning, an effect which in turn affects job performance,which in turn affects the national economy, which in turn affects interstatecommerce. In the case at hand, violence against women affects job performance,which in turn affects the national economy, which in turn affects interstatecommerce. Again the one less step in the case at hand is unimportant. Itis far from clear that the distance from the first to the last step is greaterin the Lopez chain of causation than in the case at hand's chain.

The bottom line is that both Lopez and the case at hand involve regulatedactivity that is too remote from interstate commerce. Any substantial distinctionbetween the lengths of the chains of causation in Lopez and the lengthsof the chains in the case at hand is inconsequential. As mentioned, thesteps of causation analysis is an inexact science, a formalistic frameworkupon which no heavy reliance should be placed. In the end, the importantissue is the proximity of the regulated activity to commerce, not the numberof steps. The proximity between the regulated activity and commerce in thecase at hand is similar to the proximity in Lopez, and any distinction betweenthe two is based on insignificant differences and on differences which areimpossible to comprehend with reasonable certainty. Even accepting the stepanalysis as helpful and accepting that the case at hand involves fewer stepsthan the situation in Lopez, both situations involve regulated activitywhich is too remote from interstate commerce.

b. Similarities (Other Than Those in the Possible Differences Section)

Unlike the differences, the similarities between Lopez and the case at handare real and significant. First, of major importance is that VAWA involvesintrastate activity which is not commercial or even economic in nature.Any interstate nature of VAWA is insignificant. VAWA regulates local criminalactivity. It does not regulate the growth of crops, the shipment of goods,or other similar economic activities. In line with Lopez, whether a statuteregulates intrastate activity which is economic in nature is a consideration.See Lopez, 514 U. S. at -- - --, 115 S. Ct. at 1630-1631. In Jane Doe v.John Doe, 929 F. Supp. 608 (D.Conn.1996), the only other opinion I am awareof that addresses this issue to date, the court upheld the constitutionalityof VAWA under the Commerce Clause. The court compared the situation in Wickardto VAWA. As mentioned, the Wickard Court upheld the application of the AgriculturalAdjustment Act to home-consumed wheat, stating, "It can hardly be deniedthat a factor of such volume and variability as home-consumed wheat wouldhave a substantial influence on price and market conditions." Wickard,317 U. S. at 128, 63 S. Ct. at 91. Analyzing VAWA in light of Wickard, theDoe court concluded:
Certainly the repetitive nationwide impact of women withholding, withdrawingor limiting their participation in the workplace or marketplace in responseto or as a result of gender-based violence or the threat thereof, is ofsuch a nature to be as substantial an impact on interstate commerce as theeffect of excess "home grown" wheat harvesting which was foundto have been properly regulated by Congressional enactment.
Doe, 929 F. Supp. at 614 (citation omitted). This analysis is contrary toLopez, which, as discussed, distinguished the Wickard case, in which theregulated activity was economic in nature, from cases such as the case athand and Lopez, in which the regulated activity is in no way economic innature. Lopez teaches that cases in which the statute at issue regulatesintrastate activity which is economic in nature are analyzed differentlyfrom cases involving non-economic intrastate activity. After Lopez, relianceon Wickard to analyze the commerce power in a case involving a non-economicintrastate activity is not tenable.2 In addition to Wickard, the other casesupon which plaintiff relies heavily are all distinguishable as cases involvingeconomic activity. See Lopez, 514 U. S. at --, 115 S. Ct. at 1630 (listingthe following as cases involving congressional acts regulating intrastateeconomic activity: Hodel, 452 U. S. 264, 101 S. Ct. 2352, 69 L.Ed.2d 1 (1981)(involving intrastate coal mining); Perez v. United States, 402 U. S. 146,91 S. Ct. 1357, 28 L.Ed.2d 686 (1971) (involving intrastate extortionatecredit transactions); Katzenbach v. McClung, 379 U. S. 294, 85 S. Ct. 377,13 L.Ed.2d 290 (1964) (involving restaurants utilizing substantial interstatesupplies); and Heart of Atlanta Motel, 379 U. S. 241, 85 S. Ct. 348, 13L.Ed.2d 258 (1964) (involving inns and hotels catering to interstate guests)).

Second, similar to § 922(q), VAWA does not have a jurisdictional requirementlimiting each individual case under VAWA to situations involving interstatecommerce. Although it is unclear whether such a jurisdictional requirementis needed, indications exist that such a requirement may be necessary. Congresshas often placed such a requirement in legislation similar to VAWA. SeeCleveland v. United States, 329 U. S. 14, 67 S. Ct. 13, 91 L.Ed. 12 (1946)(discussing the Mann Act, which made an offense the transportation in interstatecommerce of any woman or girl for the purpose of prostitution or debauchery,or for any other immoral purpose). In United States v. Bass, 404 U. S. 336,92 S. Ct. 515, 30 L.Ed.2d 488 (1971), respondent had been convicted forpossession of firearms under Title VII of the Omnibus Crime Control andSafe Streets Act of 1968, which mandated punishment for any convict "whoreceives, possesses, or transports in commerce or affecting commerce . .. any firearm." Id. at 337, 92 S. Ct. at 517. There was no attemptto show that respondent had possessed the firearms "in commerce oraffecting commerce," and the prosecution had proceeded on the assumptionthat such connection to commerce was necessary only for the transport elementof the statute, not for possession. Id. at 338, 92 S. Ct. at 517-518. TheCourt of Appeals reversed respondent's conviction, finding that if it acceptedthe prosecution's interpretation of the statute, then there would be substantialdoubt as to the statute's constitutionality. Id. (citation omitted). TheSupreme Court affirmed, but for different reasons, applying the interstatecommerce requirement to receiving, possessing, or transporting a firearm.The Court reasoned that ambiguity in criminal statutes should be resolvedin favor of lenity, Id. at 347, 92 S. Ct. at 522, and that ambiguity shouldbe resolved in favor of not significantly changing the federal-state balance.Id. at 349, 92 S. Ct. at 523.

Third, similar to the situation in Lopez, permitting VAWA as a constitutionalexercise of the commerce power would have the practical result of excessivelyextending Congress's power and of inappropriately tipping the balance awayfrom the states. The Lopez Court placed much importance on the practicalimplications of permitting § 922(q) under the Commerce Clause. Thepractical implications in the case at hand are very similar.

A reasonable inference from the congressional findings is that violenceagainst women has its major effect on the national economy. Congress focusedon the effect on the national economy, and a reasonable inference, basedboth on Congress's focus and common sense, is that the effects on interstatetravel are incidental. Showing that something affects the national economydoes not suffice to show that it has a substantial effect on interstatecommerce. Plaintiff uses "effects on the national economy" interchangeablywith "effects on interstate commerce." This is wrong. Undoubtedlyeffects on the national economy in turn affect interstate commerce. Sucha chain of causation alone, however, is insufficient to bring an act withinthe purview of the commerce power. If such a chain of causation sufficed,Congress's power would extend to an unbounded extreme. Defendants pointout that facts show that insomnia costs the United States $15 billion ayear (citing 2 Nat'l Comm'n On Sleep Disorders Research, Wake Up America:A National Sleep Alert (submitted to the U. S. Congress and the Secretaryof Health and Human Services), 125-133 (1994)). This is as much as the yearlycost of domestic abuse. Other sources indicate that the cost of insomniais much higher. See 140 Cong. Rec. S. 14211-01, The Economics of Insomnia(daily ed. Oct. 5, 1994) (statement of Sen. Hatfield) (stating that a sourceindicates that the estimated annual economic cost of insomnia due to reducedproductivity, accidents, and medical problems is between $92.5 and $107.5billion). Insomnia undoubtedly also has some effect on interstate travelas insomniacs travel across state lines for treatment (e.g., to the nationally-renownedJohns Hopkins Sleep Disorder Center in Maryland). Insomniacs buy medicinewhich has traveled across state lines. Family law issues and most criminalissues affect the national economy substantially and in turn have some effecton interstate commerce. These too have interstate travel implications. However,to extend Congress's power to these issues would unreasonably tip the balanceaway from the states.

The fact that Congress limited VAWA, in stating that VAWA does not "conferon the courts of the United States jurisdiction over any State law claimseeking the establishment of a divorce, alimony, equitable distributionof marital property, or child custody decree," 42 U.S.C. § 13981(e)(4),is utterly insignificant to the practical implications of accepting theregulated activity as having a substantial effect on interstate commerce.It is the logic on which Congress based its commerce power that is important.If the justification for VAWA under the Commerce Clause is constitutionallyacceptable, then certainly Congress would have power to regulate much activitywhich should be left to state control. Similar to the situation in Lopez,if I accepted plaintiff's argument, I would be "hard-pressed to positany activity by an individual that Congress is without power to regulate."Lopez, -- U. S. at --, 115 S. Ct. at 1632. In essence, if VAWA is a permissibleuse of the commerce power because of the regulated activity's effect onthe national economy, which in turn affects interstate commerce, then itwould be inconsistent to deny the commerce power's extension into familylaw, most criminal laws, and even insomnia.

The combination of the insignificance of the differences between the caseat hand and Lopez and the significance of the similarities leads to theconclusion that Congress acted beyond its commerce power in enacting VAWA.Any other conclusion would strain reason. As Justice Scalia recently statedregarding the Supreme Court, "[W]e expect both ourselves and lowercourts to adhere to the 'rationale upon which the Court based the resultsof its earlier decisions.'" United States v. Virginia, -- U. S. --,--, 116 S. Ct. 2264, 2305, 135 L.Ed.2d 735 (Scalia, J., dissenting) (quotingSeminole Tribe of Fla. v. Florida, -- U. S. --, -- - --, 116 S. Ct. 1114,1128-1129, 134 L.Ed.2d 252 (1996)). A reasonable adherence to Lopez revealsthat VAWA is not a proper use of the commerce power.

B. The Enforcement Clause

The Fourteenth Amendment states in part, "No state shall . . . denyto any person within its jurisdiction the equal protection of the laws."U. S. Const., amend. XIV, § 1. It also states, "The Congress shallhave power to enforce, by appropriate legislation, the provisions of thisarticle." U. S. Const., amend. XIV, § 5.

1. Some Public Involvement Needed

The Supreme Court has explicitly stated that the Fourteenth Amendment regulatesonly state action and that some state involvement is necessary. See, e.g.,Civil Rights Cases, 109 U. S. 3, 11, 3 S. Ct. 18, 21, 27 L.Ed. 835 (1883)(stating that an "[i]ndividual invasion of individual rights is notthe subject matter of the [Fourteenth A]mendment"); Shelley v. Kraemer,334 U. S. 1, 13, 68 S. Ct. 836, 842, 92 L.Ed. 1161 (1948) (stating thatthe Fourteenth Amendment "erects no shield against merely private conduct,however discriminatory or wrongful"); United States v. Guest, 383 U.S. 745, 755, 86 S. Ct. 1170, 1176, 16 L.Ed.2d 239 (1966) (opinion of Stevens,J.) ("It is a commonplace that rights under the Equal Protection Clauseitself arise only where there has been involvement of the State or of oneacting under the color of its authority"); Bray v. Alexandria Women'sHealth Clinic, 506 U. S. 263, 352-355, 113 S. Ct. 753, 802-804, 122 L.Ed.2d34 (1993) (O'Connor, J., dissenting).
Careful adherence to the "state action" requirement preservesan area of individual freedom by limiting the reach of federal law and federaljudicial power. It also avoids imposing on the State, its agencies or officials,responsibility for conduct which they cannot fairly be blamed.
Lugar v. Edmondson Oil Co., 457 U. S. 922, 936, 102 S. Ct. 2744, 2753, 73L.Ed.2d 482 (1982). The Fourteenth Amendment states, "No state . .. shall deny to any person within its jurisdiction the equal protectionof the laws." U. S. Const., amend. XIV, § 1 (emphasis added).

The legislative history behind the Fourteenth Amendment indicates that thecongressional framers were concerned with private encroachment on civilrights. See Eugene Gressman, The Unhappy History of Civil Rights Legislation,50 Mich. L. Rev. 1323, 1329-1330 (1952). However, by holding that the FourteenthAmendment applies to private conduct with a certain connection to stateaction, the Fourteenth Amendment can still reach some private conduct. ButSupreme Court precedent and, moreover, the language of the Fourteenth Amendmentrequire that some state involvement is necessary, even though it may betangential.

Some authority indicates that Congress may address purely private conductvia § 5 of the Fourteenth Amendment in spite of the fact that §1 actions require state action. In Guest, while Justice Stevens' opinionof the Court mandated some public involvement for Congress's use of thepower granted by § 5 of the Fourteenth Amendment, six justices agreedthat no state action was necessary for Congress's use of § 5. 383 U.S. at 762, 774-786, 86 S. Ct. at 1180, 1186-1193; see also, District ofColumbia v. Carter, 409 U. S. 418, 93 S. Ct. 602, 34 L.Ed.2d 613 (1973)(opinion of Brennan, J.) (stating first, "The Fourteenth Amendmentitself 'erects no shield against merely private conduct, however discriminatoryor wrongful,'" id. at 423-424, 93 S. Ct. at 606 (quoting Shelley v.Kraemer, 334 U. S. at 13, 68 S. Ct. at 842), then stating in a footnote,"This is not to say, of course, that Congress may not proscribe purelyprivate conduct under § 5 of the Fourteenth Amendment." Id. at424 n. 8, 93 S. Ct. at 606 n. 8 (emphasis added)). Although Congress hascertain discretion under § 5, the idea that Congress can address purelyprivate conduct under § 5 is contrary to both the language of the FourteenthAmendment and the Civil Rights Cases, 109 U. S. 3, 11, 3 S. Ct. 18, 21,27 L.Ed. 835 (1883) (stating that § 5 permits Congress only to "adoptappropriate legislation for correcting the effects of such prohibited Statelaws and State acts, and thus to render them effectively null, void, andinnocuous"). The Court has stressed that, even in the face of conflictingSupreme Court decisions, lower courts are not to assume that Supreme Courtprecedent has been implicitly overruled, see Rodriguez de Quijas v. Shearson/AmericanExpress, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921-1922, 104 L.Ed.2d526 (1989), and the Court has cited the Civil Rights Cases approvingly asrecently as 1982. See Lugar, 457 U.S. at 936, 102 S. Ct. at 2753.

2. Morgan

Even though state action was not at issue in Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16 L.Ed.2d 828 (1966), the plaintiff relies primarilyon the sweeping language of Morgan in support of her position that the FourteenthAmendment reaches private conduct. In Morgan, the Court considered whether§ 4(e) of the Voting Rights Act of 1965 was constitutional under §5 of the Fourteenth Amendment. Section 4(e) provided in relevant part thatno person who successfully completed the sixth grade in public or privateschool in Puerto Rico in which the language of instruction was other thanEnglish shall be denied the right to vote because of an inability to reador write English. Id. at 643, 86 S. Ct. at 1719. Appellees in the case challenged§ 4(e) in that it prohibited the enforcement of the election laws ofNew York, which required an ability to read and write English as a conditionof voting. Id. at 643-644, 86 S. Ct. at 1719-1720. Appellees attacked §4(e) because it enabled many New York residents to vote who could not previouslyvote under the New York law. Id. at 644-645, 86 S. Ct. at 1720. The Courtheld that § 4(e) was a proper exercise of the powers granted to Congressby § 5 of the Fourteenth Amendment, and, by force of the SupremacyClause, the New York English literacy requirement could not be enforcedto the extent that it was inconsistent with § 4(e). Id. at 646-647,86 S. Ct. at 1721. The Court stated, "A construction of § 5 thatwould require a judicial determination that the enforcement of the statelaw precluded by Congress violated the [Fourteenth] Amendment, as a conditionof sustaining the congressional enactment, would depreciate both congressionalresourcefulness and congressional responsibility for implementing the Amendment."Id. at 648, 86 S. Ct. at 1722. The Court's task was not to determine "whetherthe New York English literacy requirement as applied to deny the right tovote to a person who successfully completed the sixth grade in a PuertoRico school violate[d] the Equal Protection Clause." Id. at 649, 86S. Ct. at 1722-1723. Instead, the Court's task was to determine whether§ 4(e) was "as required by § 5, appropriate legislation toenforce the Equal Protection Clause." Id. at 649-650, 86 S. Ct. at1723.

The Court noted that § 5 has a broad scope. Id. at 650, 86 S. Ct. at1723. "Let the end be legitimate, let it be within the scope of theconstitution, and all means which are appropriate, which are plainly adaptedto that end, which are not prohibited, but consist with the letter and spiritof the constitution, are constitutional." Id. (quoting M'Culloch v.Maryland, 17 U. S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819)). Therefore,the test is (1) whether a statute "may be regarded as an enactmentto enforce the Equal Protection Clause, [(2)] whether it is 'plainly adaptedto that end' and [(3)] whether it is not prohibited by but is consistentwith 'the letter and spirit of the constitution.'" Id. at 651, 86 S.Ct. at 1724 (quoting M'Culloch, 17 U. S., (4 Wheat.) at 421).

Regarding the first requirement, the Court stated, "There can be nodoubt that § 4(e) may be regarded as an enactment to enforce the EqualProtection Clause." Id. at 652, 86 S. Ct. at 1724. Congress "explicitlydeclared" that it enacted § 4(e) to secure rights under the FourteenthAmendment, and "§ 4(e) may be viewed as a measure to secure forthe Puerto Rican community residing in New York nondiscriminatory treatmentby government." Id. Regarding the second requirement, the Court indicatedthat § 4(e) "may be readily seen as 'plainly adapted'" tofurthering aims of the Equal Protection Clause. Id. Section 4(e) in effect"prohibit[s] New York from denying the right to vote to large segmentsof its Puerto Rican community" and thus enhances the Puerto Rican community'spolitical power, which in turn "will be helpful in gaining nondiscriminatorytreatment in public services for the entire Puerto Rican community."Id. at 652, 86 S. Ct. at 1724. "Section 4(e) thereby enables the PuertoRican minority better to obtain 'perfect equality of civil rights and theequal protection of the laws.'" Id. at 652-653, 86 S. Ct. at 1724-1725.Therefore, Morgan involved state action (New York's statute) which causedan infringement on Fourteenth Amendment rights.

The extent of Morgan's applicability to the case at hand is limited. InMorgan, Congress's statute invalidated a state statute and thereby remediedequal protection violations. 384 U. S. at 652-653, 86 S. Ct. at 1724-1725.Reasonably Morgan is limited to situations where Congress acted againststate action which caused a denial of equal protection, and Morgan doesnot permit Congress to act against purely private action incidentally givingrise to state action which causes a denial of equal protection. However,Morgan is distinguishable on other grounds as well, as will be discussed.

3. VAWA

VAWA has two general purposes. It was enacted to attack gender-motivatedcrime against women and to supplement deficiencies in the state criminaljustice system. First, VAWA adds to state systems a remedy for the biaselement of gender-motivated violent crimes against women. VAWA "attacksgender-motivated crimes that threaten women's equal rights," taking"aim at gender discrimination prohibited under the [Thirteenth] Amendment."S. Rep. No. 197, 102d Cong., 1st Sess. 53 (1991).3 "State and Federalcriminal laws do not adequately protect against the bias element of crimesof violence motivated by gender." H.R. Rep. No. 711, 103d Cong., 2dSess. 385 (1994), U. S. Code Cong. & Admin. News 1801, 1853. The Senatefound,
[w]here a crime is shown to be motivated by gender bias, a different interestis implicated; one not adequately addressed by State tort law alone. Thecivil rights action provided by [T]itle III has the entirely different functionof providing a special societal judgment that crimes motivated by genderbias are unacceptable because they violate the victims' civil rights. TitleIII singles out for enhancement bias-inspired conduct because of the uniqueindividual and societal harm it causes. For example, the supreme [sic] Courthas recognized that bias crimes are more likely to provoke retaliatory crimes,inflict distinct emotional harms on their victims, and incite communityunrest. Quoting Blackstone, "'it is but reasonable that among crimesof different natures those should be most severely punished which are themost destructive of the public safety and happiness.'"
S. Rep. No. 138, 103d Cong., 1st Sess. 50 (1993) (footnotes omitted).

Second, purportedly VAWA "provides a 'necessary' remedy to fill thegaps and rectify the biases of existing State laws." S. Rep. No. 197at 53. "In many States, rape survivors must overcome barriers of proofand local prejudice that other crime victims need not hurdle; they bearthe burden of painful and prejudicial attacks on their credibility thatother crime victims do not shoulder; they may be forced to expose theirprivate life and intimate conduct to win a damage award unlike any othercivil litigant; and, finally, in some cases, they are barred from suit altogetherby tort immunity doctrines and marital exclusions." Id. at 53-54. Stateand federal criminal laws do not "adequately provide victims of gender-motivatedcrimes the opportunity to vindicate their interests; existing bias and discriminationin the criminal justice system often deprives victims of crimes of violencemotivated by gender of equal protection of the laws and the redress to whichthey are entitled." H.R. Rep. No. 711, 103d Cong., 2d Sess. 385 (1994),U. S. Code Cong. & Admin. News 1801, 1853. "Study after study hasconcluded that crimes disproportionately affecting women are often treatedless seriously than comparable crimes affecting men." Id. (footnoteomitted). The state criminal systems are inadequate at the police, the prosecution,and the judicial levels. See Violence Against Women, Hearing Before theHouse Subcommittee on Crime and Criminal Justice, 102d Cong., 2d Sess. 70-82(1992) (statement and prepared statement of Margaret Rosenbaum, AssistantState Attorney, Miami, Fla.); H.R. Rep. 395, 103d Cong., 1st Sess. 27-28(1993).

Congress has wide latitude under the Fourteenth Amendment. "Correctlyviewed, § 5 is a positive grant of legislative power authorizing Congressto exercise its discretion in determining whether and what legislation isneeded to secure the guarantees of the Fourteenth Amendment." Morgan,384 U.S. at 651, 86 S. Ct. at 1723-1724. Despite this broad power, Congress'sacts must have some reasonable possibility of addressing a legitimate equalprotection concern. Otherwise, Congress's power under the Fourteenth Amendmentwould be absolute. In Morgan, the Court found that Congress's statute "enable[d]the Puerto Rican minority better to obtain 'perfect equality of civil rightsand the equal protection of the laws.'" 384 U. S. at 653, 86 S. Ct.at 1724. Implicit in this finding is that, at the least, in order for Congressto act under § 5, there must be some reasonable possibility that Congress'sact is a legitimate means for remedying a legitimate end (i.e., a legitimateremedy for a legitimate equal protection concern). With respect to VAWA,I will discuss (1) whether Congress's ends are legitimate and, if so, (2)whether Congress's means are legitimate.

a. Whether Congress's Ends Are Legitimate

As stated, Congress had two ends in mind in drafting VAWA: (1) to remedyprivate individuals' gender-based violence and (2) to remedy gender-baseddeficiencies in the states' criminal justice systems.

i. To Remedy Private Individuals' Violence

First, regarding the purpose to create a cause of action against the criminaldiscriminator, sufficient contacts to state action do not exist to giverise to a legitimate equal protection concern. If state action were sufficientlyconnected to a criminal's discriminating acts, a legitimate equal protectionconcern would exist. However, no such sufficient connection exists.

"[T]he involvement of the State need [not] be either exclusive or direct.In a variety of situations the Court has found state action of a naturesufficient to create rights under the Equal Protection Clause even thoughthe participation of the State was peripheral, or its action was only oneof several co-operative forces leading to the constitutional violation."Guest, 383 U. S. at 755-756, 86 S. Ct. at 1177 (citations omitted). Conductallegedly causing the deprivation of a federal right must be fairly attributableto the state. Lugar, 457 U. S. at 937, 102 S. Ct. at 2753. Conduct causingthe deprivation of a federal right may be fairly attributable if (1) "thedeprivation [is] caused by the exercise of some right or privilege createdby the State or by a rule of conduct imposed by the State or by a personfor whom the state is responsible" or if (2) "the party chargedwith the deprivation [is] a person who may fairly be said to be a stateactor" (because, for example, "he is a state official, becausehe has acted together with or has obtained significant aid from state officials,or because his conduct is otherwise chargeable to the State"). Id.(citations omitted).

A private individual's gender-based violent crime against a woman does notqualify for either category. The deprivation caused by private individualswho commit crimes against women due to gender is not caused by the exerciseof some right or privilege created by the state or by a rule of conductimposed by the state or by a person for whom the state is responsible. Certainlythe state is not responsible in any relevant sense for individuals who commitviolent crimes against women. Even with the inadequate criminal remedy forgender-motivated crimes against women, the states do not permit individualsto commit violent gender-motivated acts against women. The state actionat issue (the inadequacies in the state criminal systems) does not cause,or, in any significant manner, even contribute to, the deprivation causedby the individual criminal. The private individual's decision to discriminateby committing a gender-based violent act against a woman cannot be ascribedto any governmental decision. Cf. id. at 938, 102 S. Ct. at 2754 (citingMoose Lodge No. 107 v. Irvis, 407 U. S. 163, 92 S. Ct. 1965, 32 L.Ed.2d627 (1972)). Such acts are unlawful both under state criminal and statetort laws, and, even if the states pursue their criminal laws against rapeand domestic abuse less vigorously than other laws, the Court has held thatif an act is unlawful, then it cannot be ascribed to any governmental decision.See id. at 940, 102 S. Ct. at 2755 (to say that conduct is unlawful understate law "is to say that the conduct of which petitioner complainedcould not be ascribed to any governmental decision; rather, respondentswere acting contrary to the relevant policy articulated by the State").

The private individual criminal is also not a person who may fairly be saidto be a state actor. The targets of VAWA are not state officials, but insteadare the individual criminals; these targets have not acted together withor obtained significant aid from state officials; and the criminal conductis not otherwise chargeable to the state. No possibility exists that VAWAdefendants obtained significant aid from the state criminal justice systems'deficiencies in the commission of the discriminatory violent crimes. A rapistwho rapes in part due to a woman's gender commits one act of discrimination,and deficiencies in the state criminal system effect a separate act of discrimination.Two separate acts of discrimination occur. The rapist does not rely on thestate in any real sense as an accomplice to his act of discrimination. Thestate action related to VAWA is distinct from the discriminatory act ofthe private individual.

In Guest, the prosecutor had alleged in part in an indictment that six privateindividual defendants had conspired to
injure, oppress, threaten, and intimidate Negro citizens of the United Statesin the free exercise and enjoyment of: "The right to the equal utilization,without discrimination upon the basis of race, of public facilities in thevicinity of Athens, Georgia, owned, operated or managed by or on behalfof the State of Georgia or any subdivision thereof."
383 U. S. at 753, 86 S. Ct. at 1175. The Court considered whether the causeof action, based on the Fourteenth Amendment, had to be dismissed becausethe indictment named no one alleged to have acted under the color of statelaw, and because "[t]he Equal Protection Clause speaks to the Stateor to those acting under the color of its authority." Id. at 754, 86S. Ct. at 1176.
[T]he indictment in fact contain[ed] an express allegation of state involvementsufficient at least to require the denial of a motion to dismiss. One ofthe means of accomplishing the object of the conspiracy, according to theindictment, was "By causing the arrest of Negroes by means of falsereports that such Negroes had committed criminal acts."
Id. at 756, 86 S. Ct. at 1177 (footnote omitted). Three members of an earlierCourt had expressed the view that a private businessman's invocation ofstate police and judicial action to carry out his own policy of racial discriminationwas sufficient to create equal protection rights in those against whom theracial discrimination was directed. Id. (citing Bell v. Maryland, 378 U.S. 226, 242-286, 84 S. Ct. 1814, 1823-1847, 12 L.Ed.2d 822 (1964) (in Bell,Maryland police had arrested black students, and a Maryland court had convictedthe students for participating in a sit-in. The students had appealed theirconviction to the Supreme Court)). From the facts alleged in the indictmentin Guest, it was possible that state officials engaged in no more than co-operativeprivate and state action similar to that in Bell, but it was also possiblethat agents of the state actively participated in discrimination. Id. at756-757, 86 S. Ct. at 1176-1177.

Unlike the statute involved in Guest, as exemplified by the possible extentof complicity between the state and private actors in the facts of Guest,there is no real possible complicity between the state criminal justicesystem and private actors in VAWA actions. In fact, the congressional findingsdo not mention such complicity. Theoretically there could be some complicityin that both the state and the criminal may discriminate against the femalevictim. The two acts of discrimination, however, are separate, and no indicationexists that the state inaction or inadequate action against the criminalhelps or encourages the criminal to commit his gender-based act of violence.

In Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L.Ed. 1161 (1947),the Court considered the validity of state courts' enforcement of privaterestrictive covenants having as their purpose the exclusion of blacks fromthe ownership or occupancy of real property. Id. at 4, 68 S. Ct. at 838.Blacks had occupied property subject to the restrictive covenants, and thestate courts enforced the restrictive covenants, requiring the blacks toleave the property. Id. at 5-6, 68 S. Ct. at 838-839. The Supreme Courtheld that the state courts' enforcement of the restrictive covenants wassufficient state action.

It is clear that but for the active intervention of the state courts, supportedby the full
panoply of state power, petitioners would have been free to occupy the propertiesin question without restraint. These are not cases, as has been suggested,in which the States have merely abstained from action, leaving private individualsfree to impose such discriminations as they see fit. Rather, these are casesin which the States have made available to such individuals the full coercivepower of government to deny to petitioners, on the grounds of race or color,the enjoyment of property rights in premises which petitioners are willingand financially able to acquire and which the grantors are willing to sell.
Id. at 19, 68 S. Ct. at 845.

The situation at hand differs from Shelley in two respects. First, the statecriminal systems' insufficient treatment of perpetrators of violence againstwomen is "merely abstaining from action" and lacks the activeintervention attributed to the state courts' actions in Shelley. It is thestate systems' inaction or inadequate action towards the violent criminalswhich concerned Congress. Second, unlike in Shelley, with VAWA no possibilityexists that but for the state's inadequate action, the criminals would notcommit the discriminatory crimes.

In Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 98 S. Ct. 1729, 56 L.Ed.2d185 (1978), the plaintiff had been evicted from her apartment, and the citymarshal had arranged for the plaintiff's possessions to be stored by FlaggBrothers in its warehouse. Id. at 153, 98 S. Ct. at 1732. Plaintiff disputedher moving and storage costs, and Flagg Brothers undertook to enforce itswarehousemen's lien which was created by New York Uniform Commercial Code§ 7-210. Id. at 151 n. 1, 153, 98 S. Ct. at 1731 n. 1, 1732. The SecondCircuit found that because the state statute had created the lien whichpermitted a private individual to, in effect, violate the due process clause,there was sufficient state involvement to satisfy the state action requirement.Id. at 154-155, 98 S. Ct. at 1732-1733. The Supreme Court disagreed, stating,
While as a factual matter any person with sufficient physical power maydeprive a person of his property, only a state or private person whose actions"may be fairly treated as that of the state itself" . . . maydeprive him of "an interest encompassed within the Fourteenth Amendment'sprotection."
Id. at 157, 98 S. Ct. at 1734 (citations omitted).
This Court . . . has never held that a State's mere acquiescence in a privateaction converts that action into that of the State. . . . [Certain] casesclearly rejected the notion that our prior cases permitted the impositionof Fourteenth Amendment restraints on private action by the simple deviceof characterizing the State's inaction as "authorization" or "encouragement."
Id. at 164-165, 98 S. Ct. at 1737-1738 (citations omitted). The Court foundthat there was a "total absence of overt official involvement,"id. at 157, 98 S. Ct. at 1734 (citations omitted), in spite of the factthat state officials had passed § 7-210. "It would intolerablybroaden, beyond the scope of any of our previous cases, the notion of stateaction under the Fourteenth Amendment to hold that the mere existence ofa body of property law in a State, whether decisional or statutory, itselfamounted to 'state action' even though no state process or state officialswere ever involved in enforcing that body of law." Id. at 160 n. 10,98 S. Ct. at 1735 n. 10.

VAWA is unlike Flagg Brothers in that VAWA involves active current decisionsby state actors and in that VAWA involves the method of enforcement of lawsas well as the bodies of laws themselves. However, more relevantly, similarto Flagg Brothers, VAWA involves state inaction or inadequate action towardsthe individual causing the deprivation, and VAWA involves no overt officialinvolvement. Following the logic of Flagg Brothers, this is not authorizationor encouragement of the deprivation.

In Lugar, the Court considered in part whether private individuals' useof state officials to take advantage of state-created attachment proceduresconstituted sufficient state action. Lugar, 457 U. S. at 942, 102 S. Ct.at 2756. The Court held that such joint participation between private individualsand the state sufficed to make the conduct fairly attributable to the state.Id. Due to the private party's joint participation with the state officials,the private party was a "state actor." Id. at 941-942, 102 S.Ct. at 2756. This is different from VAWA which involves situations whereprivate individuals do not act together with or receive any significantaid from the state in the commission of the violent act.

Therefore, remedying private individuals' gender-based crimes is not a legitimateequal protection goal due to the fact that no sufficient state contactsexist.

ii. To Remedy Deficiencies in State System

Some possibility exists that at least part of the states' differential treatmentof gender-based violent crimes against women is due to gender discrimination,and so correcting the differential treatment arising out of gender discriminationis a legitimate Fourteenth Amendment concern. Considering Congress's broaddiscretion, a legitimate equal protection concern exists within state criminaljustice systems.

b. Whether Congress's Means Are Legitimate

As stated, Congress's purpose to remedy discrimination by private individualswho commit gender-based violent crime against a woman is an illegitimateFourteenth Amendment end, and so addressing whether the means sufficientlyaddress this end is unnecessary. In contrast, the purpose to remedy deficienciesin the state system is a legitimate end, but no reasonable possibility existsthat VAWA will help remedy this legitimate Fourteenth Amendment concern.

The § 5 analysis scheme presented in Morgan focused on whether an actof Congress remedies a legitimate Fourteenth Amendment concern. In Morganthe Court found that Congress's act would remedy a legitimate equal protectionconcern. Morgan, 384 U. S. at 652-653, 86 S. Ct. at 1724-25. At least areasonable possibility must exist that Congress's act remedies a legitimateFourteenth Amendment concern. While remedying the state criminal system'sdeficiencies is a legitimate Fourteenth Amendment concern, VAWA does notaddress this concern, because VAWA provides no remedy for the deficiencies.It does not provide a remedy to the victim for the denial of the victim'sequal protection rights by either undoing or stopping the specific equalprotection violation or by compensating the victim for the violation, nordoes it provide a remedy against the Fourteenth Amendment violator.

Clearly VAWA does not undo or stop the violations in the states' criminaljustice systems. Also, it does not adequately compensate victims for thedenial of their equal protection rights. VAWA is tailored to remedy conductother than the conduct giving rise to the equal protection concern. VAWAcompensates victims for the violence directed against them because of theirgender, not for the states' denial of equal protection. If in a certaincase VAWA comes close to accurately remedying deficiencies in the states'systems, it is purely by chance. To illustrate the problem, clear examplesexist whereby VAWA will not compensate victims for the states' denial ofwomen's equal protection rights. The statute is overbroad: many women whodo not suffer Fourteenth Amendment violations at the hands of the statesystem would still have a VAWA claim. A woman in a state with fair rapelaws who is raped and whose rapist receives the maximum sentence may stillhave a VAWA claim. That woman may receive compensation via VAWA despitehaving suffered no denial of her equal protection rights. VAWA is also toonarrow: many women who suffer clear violations of their Fourteenth Amendmentrights would not have a VAWA remedy, because the crime was not based onthe woman's gender. These women would not receive any compensation despitethe fact that the states clearly denied them equal protection of the laws.

The aim of legislation to cure Fourteenth Amendment violations should beat the entity which causes the violation. In this case that entity is thestates. VAWA does not address the states, which are the perpetrators ofthe Fourteenth Amendment violation; it is wholly silent about the conductof the various states in their handling of rape and other violent crimesagainst women. Consequently, VAWA does nothing to discourage the FourteenthAmendment violations which occur in the state criminal systems. Insteadof addressing the Fourteenth Amendment violation by the states' criminaljustice system, VAWA authorizes a cause of action against an individualwho did not contribute in any real sense to the unequal treatment in thestates' criminal justice systems. In Guest, the individuals subject to thecause of action had allegedly involved the state to deprive blacks of equalprotection rights. The individuals and the state were possibly conspiratorsto deprive equal protection. The cause of action at issue in Guest was aremedy against possible Fourteenth Amendment violation perpetrators. UnlikeGuest, the private acts which VAWA targets are incidental to the FourteenthAmendment violation. Therefore, VAWA provides no remedy against the FourteenthAmendment violation perpetrator.

No reasonable possibility exists that, in enacting VAWA, Congress has enforcedthe Fourteenth Amendment mandate that "[n]o state shall . . . denyto any person within its jurisdiction the equal protection of the laws."U. S. Const., amend. XIV, § 1. No reasonable possibility exists thatVAWA will remedy any legitimate Fourteenth Amendment concern.

VI. Conclusion

Without a doubt violence against women is a pervasive and troublesome aspectof American life which needs thoughtful attention. But Congress is not investedwith the authority to cure all of the ills of mankind. Its authority toact is limited by the Constitution, and the constitutional limits must berespected if our federal system is to survive. Congress's reliance on theCommerce Clause and the Fourteenth Amendment to support its authority toenact VAWA is misplaced. This is not to say that Congress is powerless toaddress the problem of violence against women. A properly drafted statutewithin the parameters of the Fourteenth Amendment, as interpreted by theSupreme Court could certainly be crafted.

Although plaintiff states a claim under VAWA for purpose of Fed. R. Civ.P. 12(b)(6), VAWA is an unconstitutional exercise of Congress's power, unjustifiedunder either the Commerce Clause or the Enforcement Clause of the FourteenthAmendment. Consequently, defendants' motion to dismiss the VAWA claims withprejudice is granted. I decline to exercise supplemental jurisdiction overthe state claims and dismiss these without prejudice pursuant to 28 U.S.C.§ 1367(c)(3).

The clerk will enter an appropriate order.

For the reasons stated in the accompanying memorandum opinion, the ViolenceAgainst Women Act, 42 U.S.C. § 13981, claims against Antonio Morrisonand James Crawford are dismissed with prejudice. The state claims are dismissedwithout prejudice. The case is dismissed. The Clerk is directed to removethe case from the docket and to certify copies of this order and the accompanyingmemorandum opinion to all counsel of record.

1 From this point on, "plaintiff"may refer to Brzonkala's initial counsel, the Government, which intervenedon Brzonkala's behalf, amici, or some or all of the above.
2 The Doe court also based its holding partly on the conclusion that Lopez'spractical implications analysis was dicta. See Doe, 929 F. Supp. at 613.Counsel for defendants disagree, as do I. However, if this analysis wasin fact dicta, this would not help the position of the Doe court. If thepractical implications analysis was unimportant, this would only bolsterthe importance of the nature of the regulated activity analysis and of theindividual case jurisdictional requirement analysis and would increase thelikelihood that, if intrastate activity is non-economic in nature and ifno requirement exists mandating a connection to commerce in each case, thenCongress cannot regulate the activity under the commerce power.
3 The fact that Congress based this in part on gender discrimination "prohibitedunder the [Thirteenth] Amendment" illustrates the straw grasping inwhich Congress engaged. The Thirteenth Amendment applies to racial, notgender, discrimination.

APPENDIX D
Statutory provisions
42 U.S.C. 13981 provides:
Civil rights
(a) Purpose
Pursuant to the affirmative power of Congress to enact this part under section5 of the Fourteenth Amendment to the Constitution, as well as under section8 of Article I of the Constitution, it is the purpose of this part to protectthe civil rights of victims of gender motivated violence and to promotepublic safety, health, and activities affecting interstate commerce by establishinga Federal civil rights cause of action for victims of crimes of violencemotivated by gender.
(b) Right to be free from crimes of violence
All persons within the United States shall have the right to be free fromcrimes of violence motivated by gender (as defined in subsection (d) ofthis section).
(c) Cause of action
A person (including a person who acts under color of any statute, ordinance,regulation, custom, or usage of any State) who commits a crime of violencemotivated by gender and thus deprives another of the right declared in subsection(b) of this section shall be liable to the party injured, in an action forthe recovery of compensatory and punitive damages, injunctive and declaratoryrelief, and such other relief as a court may deem appropriate.

(d) Definitions
For purposes of this section-4
(1) the term "crime of violence motivated by gender" means a crimeof violence committed because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender; and
(2) the term "crime of violence" means-
(A) an act or series of acts that would constitute a felony against theperson or that would constitute a felony against property if the conductpresents a serious risk of physical injury to another, and that would comewithin the meaning of State or Federal offenses described in section 16of title 18, whether or not those acts have actually resulted in criminalcharges, prosecution, or conviction and whether or not those acts were committedin the special maritime, territorial, or prison jurisdiction of the UnitedStates; and
(B) includes an act or series of acts that would constitute a felony describedin subparagraph (A) but for the relationship between the person who takessuch action and the individual against whom such action is taken.
(e) Limitation and procedures
(1) Limitation
Nothing in this section entitles a person to a cause of action under subsection(c) of this section for random acts of violence unrelated to gender or foracts that cannot be demonstrated, by a preponderance of the evidence, tobe motivated by gender (within the meaning of subsection (d) of this section).
(2) No prior criminal action
Nothing in this section requires a prior criminal complaint, prosecution,or conviction to establish the elements of a cause of action under subsection(c) of this section.
(3) Concurrent jurisdiction
The Federal and State courts shall have concurrent jurisdiction over actionsbrought pursuant to this part.
(4) Supplemental jurisdiction
Neither section 1367 of Title 28 nor subsection (c) of this section shallbe construed, by reason of a claim arising under such subsection, to conferon the courts of the United States jurisdiction over any State law claimseeking the establishment of a divorce, alimony, equitable distributionof marital property, or child custody decree.

1 So in original. The word "means" probably should appear after"(A)" below.

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No. 99-5: United States v. Morrison