Brown asserts, in the alternative, that if the district court properly construed the test, then the test itself violates Title IX and the United States Constitution. While this case presents only the example of members of the underrepresented gender seeking the opportunity to participate on single-sex teams, the same analysis would apply where members of the underrepresented gender sought opportunities to play on co-ed teams. The district court found that, in 1993-94, Brown's intercollegiate athletics program consisted of 32 teams, 16 men's teams and 16 women's teams. We conclude that the district court's application of the three-part test does not create a gender-based quota and is consistent with Title IX, 34 C.F.R. Opinion for Amy Cohen v. Brown University, 991 F.2d 888 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. The first prong is met if the school provides participation opportunities for male and female students in numbers substantially proportionate to their enrollments. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. Brown argues that the district court erred in concluding that it was obligated to give substantial deference to the Policy Interpretation, on the ground that the interpretation is not a worthy candidate for deference, Reply Br. 2297, 2303, 124 L.Ed.2d 586 (1993)). Brown therefore should be afforded the opportunity to submit another plan for compliance with Title IX. 706, 102 L.Ed.2d 854 (1989) (striking down a municipal set-aside program requiring that 30% of the city's construction dollars be paid to racial minority subcontractors on an annual basis); Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. The reviewing court's mandate constitutes the law of the case on such issues of law as were actually considered and decided by the appellate court, or as were necessarily inferred from the disposition on appeal. Commercial Union Ins. Accordingly, and notwithstanding Brown's protestations to the contrary, the Title VII concept of the qualified pool has no place in a Title IX analysis of equal opportunities for male and female athletes because women are not qualified to compete for positions on men's teams, and vice-versa. denied, 513 U.S. 1128, 115 S.Ct. Brown contends that an athletics program equally accommodates both genders and complies with Title IX if it accommodates the relative interests and abilities of its male and female students. The panel explained that, while evidence of a gender-based disparity in an institution's athletics program is relevant to a determination of noncompliance, a court assessing Title IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution's student constituency, on the one hand, and its athletic programs, on the other hand. Id. In Cohen II, we applied precisely this type of benign-classification analysis to what we viewed to be benign gender discrimination by the federal government. Nevertheless, the remedy ordered for a violation of a federal anti-discrimination statute is still subject to equal protection review, assuming that it constitutes gender-conscious government action. Junior varsity squads, by definition, do not meet this criterion. The district court's interpretation of prongs one and three creates an Equal Protection problem, which I analyze in two steps. All rights reserved. Thus, at the heart of this litigation is the question whether Title IX permits Brown to deny its female students equal opportunity to participate in sports, based upon its unproven assertion that the district court's finding of a significant disparity in athletics opportunities for male and female students reflects, not discrimination in Brown's intercollegiate athletics program, but a lack of interest on the part of its female students that is unrelated to a lack of opportunities. It can hardly be denied that this prong requires statistical balancing as it is essentially a test that requires the school to show that it is moving in the direction of satisfying the first prong. denied, 510 U.S. 1004, 114 S.Ct. While the Virginia Court made liberal use of the phrase exceedingly persuasive justification, and sparse use of the formulation substantially related to an important governmental objective, the Court nevertheless struck down the gender-based admissions policy at issue in that case under intermediate scrutiny, 518 U.S. at ----, ----, 116 S.Ct. 1442, 94 L.Ed.2d 615 (1986) (upholding a temporary program authorizing a county agency to consider sex and race as factors in making promotions in order to achieve a statistically measurable improvement in the representation of women and minorities in major job classifications in which they had been historically underrepresented); Wygant v. Jackson Bd. This argument rests, in part, upon Brown's reading of 20 U.S.C. at 2777 (recognizing that the authority of a federal court to incorporate racial criteria into a remedial decree also extends to statutory violations and that, where federal anti-discrimination laws have been violated, race-conscious remedies may be appropriate); Weber, 443 U.S. at 197, 99 S.Ct. Id. 106.41(b) (1995) ([A] recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.) (emphasis added). at 188. at 189. This is a class action lawsuit charging Brown University, its President, and its Athletic Director (collectively "defendants" or "Brown") with discriminating against women in the operation of its intercollegiate athletic program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. Accordingly, we deem the argument waived. Nevertheless, we have recognized that academic freedom does not embrace the freedom to discriminate. In Frontiero, a plurality of the Court concluded that gender-based classifications, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. 411 U.S. at 688, 93 S.Ct. While the Supreme Court in Virginia acknowledged that [p]hysical differences between men and women are enduring, id. 1731, 1736-37, 14 L.Ed.2d 601 (1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12 (1st Cir.1991), rev'd on other grounds, 506 U.S. 139, 113 S.Ct. In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. I fail to see how these statements can be reconciled with the claim that Brown cannot satisfy prong two by reducing the number of participation opportunities for men. Our respect for academic freedom and reluctance to interject ourselves into the conduct of university affairs counsels that we give universities as much freedom as possible in conducting their operations consonant with constitutional and statutory limits. In order to finance the 40 additional women's positions, Brown certainly will not have to eliminate as many as the 213 men's positions that would be cut under Brown's Phase II proposal. No aspect of the Title IX regime at issue in this case-inclusive of the statute, the relevant regulation, and the pertinent agency documents-mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . This is a class action lawsuit charging Brown University, its president, and its athletics director (collectively Brown) with discrimination against women in the operation of its intercollegiate athletics program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. The only women's varsity team created after this period was winter track, in 1982. The instant case should be distinguished from Califano for two reasons. Kelley, 35 F.3d at 271 (footnotes omitted). See Cohen II, 991 F.2d at 893. As have a number of other circuits, we have determined that issues decided on appeal should not be reopened unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. Rivera-Martinez, 931 F.2d at 151 (quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967)) (other citations omitted). 185, 214 (D.R.I.1995) ( Cohen III). benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives. Co., 41 F.3d at 770 (citing 1B Moore at 0.404[10]). 1681-1688 (1988) ("Title IX"). It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. First, Califano did not necessarily rule on benign classifications, as Metro Broadcasting and Adarand clearly did. Compare Virginia, 518U.S. 2264, 135 L.Ed.2d 735 (1996) ( Virginia); see id. The Metro Broadcasting Court applied intermediate scrutiny, notwithstanding that the previous year, in Croson, 488 U.S. 469, 109 S.Ct. 1681(b) as a categorical proscription against consideration of gender parity. This approach contravenes the purpose of the statute and the regulation because it does not permit an institution or a district court to remedy a gender-based disparity in athletics participation opportunities. at 57, and offers no explanation as to how it was prejudiced by the exclusion. Croson Co., 488 U.S. 469, 493, 109 S.Ct. The majority opinion, however, offers inconsistent guidance with respect to the role of statistics in Title IX claims. Accordingly, the Court has taken the position that voluntary affirmative action plans cannot be constitutionally justified absent a particularized factual predicate demonstrating the existence of identified discrimination, see Croson, 488 U.S. at 500-06, 109 S.Ct. Thus, there exists the danger that, rather than providing a true measure of women's interest in sports, statistical evidence purporting to reflect women's interest instead provides only a measure of the very discrimination that is and has been the basis for women's lack of opportunity to participate in sports. Cohen v. Brown University 101 F.3d 155 (1996) Vote: 9-0 Facts: By 1991, Brown University (defendant) had created 15 Toggle navigation . According to the district court, Brown's athletics program violates prong three because members of the proportionately underrepresented sex have demonstrated interest sufficient for a university-funded varsity team that is not in fact being funded. Horner, 43 F.3d at 273 n. 6 (citing Cohen v. Brown Univ., 991 F.2d 888, 896 n. 10 (1st Cir.1993)). See Cohen II, 991 F.2d at 901. Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. In addition, and as in the previous appeal, Brown challenges on constitutional and statutory grounds the test employed by the district court in determining whether Brown's intercollegiate athletics program complies with Title IX. Thus, we recite the facts as supportably found by the district court in the course of the bench trial on the merits in a somewhat abbreviated fashion. Brown contends that stare decisis does not bind this panel to the previous preliminary ruling of this Court because it lacks the element of finality, Reply Br. The majority quotes approvingly from Cohen v. Brown Univ., 879 F.Supp. at 2113. at 1193-94. A diverse judiciary is vital to maintaining the public's confidence in the courts. IA, respectively, are co-counsel for the plaintiff class in Cohen v. Brown University, along with Lynette Labinger of . at 3338 (In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.). at 3008-09 (holding that benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives). Brown contends that we are free to disregard the prior panel's explication of the law in Cohen II. Athletic Ass'n, 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. 8. Cf. Brown concedes that Adarand does not, in partially overruling Metro Broadcasting, set forth the proper standard of review for this case. Appellant's Br. At any rate, Kelley pre-dates the Supreme Court's opinions in Adarand and Virginia, meaning that it suffers from the same defects as Cohen II. In Cohen v. Brown University, plaintiff Amy Cohen challenges the elimination of women's gymnastics and volleyball teams. Trades Council, 485 U.S. 568, 108 S.Ct. The panel then carefully delineated the burden of proof, which requires a Title IX plaintiff to show, not only disparity between the gender composition of the institution's student body and its athletic program, thereby proving that there is an underrepresented gender, id. 2264, 135 L.Ed.2d 735 (1996), the Court faced an Equal Protection challenge to Virginia's practice of maintaining the Virginia Military Institute as an all male institution. 2778, 2782-83, 81 L.Ed.2d 694 (1984). In the course of the trial on the merits, the district court found that, in 1993-94, there were 897 students participating in intercollegiate varsity athletics, of which 61.87% (555) were men and 38.13% (342) were women. In addition, the majority has put the power to control athletics and the provision of athletic resources in the hands of the underrepresented gender. 3019, 92 L.Ed.2d 344 (1986) (upholding a federal district court's imposition on the union a goal for racial minority membership as a remedy for the union's contempt of the court's earlier orders to cease racially discriminatory admissions practices). Thus, the analytical result would be same, even if this were an affirmative action case. docx.docx from POLI 212 at Walden University. In 1978, several years after the promulgation of the regulations, OCR published a proposed Policy Interpretation, the purpose of which was to clarify the obligations of federal aid recipients under Title IX to provide equal opportunities in athletics programs. . (ii) Head coaches of all teams must field squads that meet minimum size requirements. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. Neither the Policy Interpretation's three-part test, nor the district court's interpretation of it, mandates statistical balancing; [r]ather, the policy interpretation merely creates a presumption that a school is in compliance with Title IX and the applicable regulation when it achieves such a statistical balance. Kelley, 35 F.3d at 271. (Cohen v. Brown University, (1st Cir. . After Cohen II, it cannot be maintained that the relative interests approach is compatible with Title IX's equal accommodation principle as it has been interpreted by this circuit. There is little more than that, because Congress adopted Title IX as a floor amendment without committee hearings or reports. The Court's 7-1 decision established the "separate but equal" doctrine. 1195, 1199, 67 L.Ed.2d 428 (1981); Hogan, 458 U.S. at 724, 102 S.Ct. E.g., A.M. Capen's Co. v. American Trading and Prod. In Adarand, the Supreme Court held that all racial classifications must be analyzed under strict scrutiny. Adarand, 515 U.S. at ----, 115 S.Ct. Benjamin D. Brown is a partner at Cohen Milstein and co-chair of the Antitrust practice group. A. 595, 598-99 (1987) (footnotes omitted), and has been said to lie half way between stare decisis and res judicata, 1B Moore at 0.404[1] n. 3 (internal quotation marks and citation omitted). . at 8. While this court has approved the importation of Title VII standards into Title IX analysis, we have explicitly limited the crossover to the employment context. 1681(b) (West 1990). Cohen II, 991 F.2d at 902 (a party losing the battle on likelihood of success may nonetheless win the war at a succeeding trial). 1681, et seq. at 212, is clearly correct. 1313, 1322, 59 L.Ed.2d 533 (1979). Specifically, with respect to Title IX's guarantee that no person shall be excluded on the basis of sex from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving Federal financial assistance, 20 U.S.C. It does not follow from the fact that 1681(b) was patterned after a Title VII provision that Title VII standards should be applied to a Title IX analysis of whether an intercollegiate athletics program equally accommodates both genders, as Brown contends. Cf. Instead, the law requires that, absent a demonstration of continuing program expansion for the underrepresented gender under prong two of the three-part test, an institution must either provide athletics opportunities in proportion to the gender composition of the student body so as to satisfy prong one, or fully accommodate the interests and abilities of athletes of the underrepresented gender under prong three. 978, 1001 (D.R.I.1992) (Cohen I). The law of the case doctrine is a prudential rule of policy and practice, rather than an absolute bar to reconsideration [] or a limitation on a federal court's power. Rivera-Martinez, 931 F.2d at 150-51. First, the substantive issues have been decided adversely to Brown. After all, the district court itself stated that one of the compliance options available to Brown under Title IX is to demote or eliminate the requisite number of men's positions. Cohen III, 879 F.Supp. Please try again. 106.41, deserves controlling weight, 991 F.2d at 895; that the Policy Interpretation warrants substantial deference, id. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) (Cohen II). Specifically, Brown argues that the district court's interpretation and application of the test is irreconcilable with the statute, the regulation, and the agency's interpretation of the law, and effectively renders Title IX an affirmative action statute that mandates preferential treatment for women by imposing quotas in excess of women's relative interests and abilities in athletics. See Cohen v. Brown Univ., 16 F.4th 935, 940-41 (1st Cir. Unless the two genders participate equally in athletics, members of the underrepresented sex would have the ability to demand a varsity level team at any time if they can show sufficient interest. We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. Amy Cohen (plaintiff), a member of the . As Brown puts it, [t]he [equal protection] violation arises from the court's holding that Title IX requires the imposition of quotas, preferential treatment, and disparate treatment in the absence of a compelling state interest and a determination that the remedial measure is narrowly tailored to serve that interest. Reply Br. In this way, Brown could easily achieve prong three's standard of full and effective accommodation of the underrepresented sex. This remedy would entail upgrading the positions of approximately 40 women. Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. at II-2. 1842, 90 L.Ed.2d 260 (1986) (striking down a collective-bargaining faculty lay-off provision requiring preferential treatment for certain racial minorities); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. It seems to me that a quota with an exception for situations in which there are insufficient interested students to allow the school to meet it remains a quota. In addition, there is ample evidence that increased athletics participation opportunities for women and young girls, available as a result of Title IX enforcement, have had salutary effects in other areas of societal concern. In addition, a gender-conscious remedial scheme is constitutionally permissible if it directly protects the interests of the disproportionately burdened gender. For the last twenty years, the Supreme Court has applied intermediate scrutiny to all cases raising equal protection challenges to gender-based classifications, including the Supreme Court's most recent gender discrimination case, United States v. Virginia, 518 U.S. 515, 116 S.Ct. It is obvious that Brown's plan was addressed to this court, rather than to offering a workable solution to a difficult problem. See Jeffrey H. Orleans, An End To The Odyssey: Equal Athletic Opportunities For Women, 3 Duke J.Gender L. & Pol'y 131, 133-34 (1996). at 901, but also that a second element-unmet interest-is present, id., meaning that the underrepresented gender has not been fully and effectively accommodated by the institution's present athletic program, id. 1419, --------- and n. 6, 128 L.Ed.2d 89 (1994)), and Mississippi Univ. Corp., 74 F.3d 317, 322 (1st Cir.1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). 689, 126 L.Ed.2d 656 (1994). At the preliminary injunction stage, Brown propounded the same relative interests argument under prong three. Thus, Brown contends, to meet fully-in an absolute sense-the interests and abilities of an underrepresented gender, while unmet interest among the overrepresented gender continues, would contravene the governing principle of equally effective accommodat[ion] of the interests and abilities of students of both genders. The unprecedented success of these athletes is due, in no small measure, to Title IX's beneficent effects on women's sports, as the athletes themselves have acknowledged time and again. Cohen II cited Metro Broadcasting for a general principle regarding Congress's broad powers to remedy discrimination, a proposition that was not reached by Adarand. We view Brown's argument that women are less interested than men in participating in intercollegiate athletics, as well as its conclusion that institutions should be required to accommodate the interests and abilities of its female students only to the extent that it accommodates the interests and abilities of its male students, with great suspicion. Brown contends that the district court misconstrued and misapplied the three-part test. Under such conditions, a school may be unable to succeed under the second prong because there may not be enough interested female students to achieve a continuing increase in the number of female participants. 597, 130 L.Ed.2d 509 (1994), we find none. Under these circumstances, the district court's finding that there are interested women able to compete at the university-funded varsity level, Cohen III, 879 F.Supp. (3)Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. Each prong of the Policy Interpretation's three-part test determines compliance in this manner. The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. Fourth, it is important to recognize that controlling authority does not distinguish between invidious and benign discrimination in the context of gender-based classifications, as it has in the context of racial classifications. Moreover, Webster, which Cohen II cited along with Metro Broadcasting, was not overruled or in any way rendered suspect by Adarand. denied, 459 U.S. 828, 103 S.Ct. In this unique context, Title IX operates to ensure that the gender-segregated allocation of athletics opportunities does not disadvantage either gender. The relevant facts, legal principles, and procedural history of this case have been set forth in exhaustive detail in the previous opinions issued in this case. Second, Brown's plan artificially boosts women's varsity numbers by adding junior varsity positions on four women's teams. Id. at 210-13. In 1996, the ACLU filed a "friend of the court" brief in support of a challenge to Brown University's athletic program as discriminating on the basis of gender - in violation of Title IX. (iii) No additional discretionary funds will be used for athletics. Nor do the regulations require institutions to field gender-integrated teams:However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport.Id.Whether or not the institution maintains gender-segregated teams, it must provide gender-blind equality of opportunity to its student body. Cohen II, 991 F.2d at 896. A difficult problem requisite proportion protects the interests of the disproportionately burdened gender freedom does,... 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