Emeldi

Order; Dissent to Order by Chief Judge KOZINSKI; Opinion by Judge GOULD; Dissent by Judge FISHER.

ORDER

The opinion in the above-captioned matter filed on March 21, 2012, and published at 673 F.3d 1218 , is amended as follows and is simultaneously filed with this order:

At slip opinion page 3268, line 2, add a footnote after <544 U.S. at 173, 125 S.Ct. 1497 . >, stating: 125 S.Ct. 1497 . Our decision rests on “the statute itself,” not on regulations implementing Title IX. Id.; see also 34 C.F.R. §§ 100.7 (e), 106.71.>.

Judges Gould and Paez have voted to deny the petition for panel rehearing and rehearing en banc. Judge Fisher has voted to grant the petition for panel rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The petition for panel rehearing and rehearing en banc…

dissenting:

I generally agree with much of what my colleagues have to say about extending the principles and jurisprudence developed under Title VII to the context of discrimination against women in colleges and universities under the rubric of Title IX. Ms. Emeldi, however, has not shown that the problems she experienced in her Ph.D. program, and particularly with her supervising faculty advisor, Dr. Horner, were the result of gender discrimination rather than an unfortunate — but not unlawful— breakdown in the academic relationship between a master professor and a graduate student. The record plainly reveals Emeldi’s frustration with her lack of progress on completing her Ph.D. studies and her dissertation, including problems she attributed to Horner as her dissertation chair. She became so frustrated that she finally complained to University administrators. She may have believed these problems and Dr. Horner’s actions were caused by his bias against her as a woman. But this is a retaliation case, where it is critical that she present evidence from *732 which a reasonable jury could find that Horner (a) knew she believed him to be gender biased, and (b) resigned in retaliation…