653 F.2d 222
Joe HOGAN, Plaintiff-Appellant,
MISSISSIPPI UNIVERSITY FOR WOMEN, et al., Defendants-Appellees.
Nos. 80-4021, 81-4041.
United States Court of Appeals,
Aug. 13, 1981.
Wilbur O. Colom, Columbus, Miss., Robert Rubin, ACLU of Miss., Jackson, Miss., for plaintiff-appellant.
Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Mississippi.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion June 5, 1981, 5 Cir., 1981, 646 F.2d 1116).
Before CHARLES CLARK and GEE, Circuit Judges, and SPEARS*, District Judge.
The State of Mississippi asserts that Congress has authorized the existence of single-sex institutions by enacting an exception to Title IX's prohibition of sex discrimination in educational institutions receiving federal financial assistance. That exception, 20 U.S.C. § 1681(a)(5), reads: "in regard to admissions, this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex." This enactment, we are told, is an exercise of Congress's enforcement power under section five of the fourteenth amendment.
Congress may indeed enforce the fourteenth amendment by virtue of section five thereof, but this enactment does not purport to and could not allow states to maintain practices otherwise violative of that amendment.
The Petition for Rehearing is DENIED, and no member of this panel nor judge of this Administrative Unit in regular active service having requested that the court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial Council Resolution of January 14, 1981), the suggestion for Rehearing En Banc is DENIED.
District Judge of the Western District of Texas, sitting by designation