Two schools declined to include Brown in future varsity schedules when women's volleyball was demoted to donor-funded status. Surely this is a far cry from a one-step imposition of a gender-based quota. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . 39,261-62 (1971) (remarks of Rep. Quie); 117 Cong.Rec. Id. 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. After rejecting Brown's proposed plan, but bearing in mind Brown's stated objectives, the district court fashioned its own remedy: I have concluded that Brown's stated objectives will be best served if I design a remedy to meet the requirements of prong three rather than prong one. Brown violated Title IX in 2020 when it eliminated 11 sports No costs on appeal to either party. But any such departure demands special justification.) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. Norfolk, November 28.The injunc tion granted on the part of the special tax bondholders vs. the State Teasurer, was opened to-day before Judges Brooks and Bond and was argued by Walker J. Budd, of Baltimore, for the plaintiff, and Geo. at ----, 116 S.Ct. v. Bakke, 438 U.S. 265, 98 S.Ct. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. No tags have been applied so far. In the first appeal, this court rejected Brown's Fifth Amendment equal protection challenge to the statutory scheme. at 29. at 1848. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. This difficulty was recognized in Cohen II, which stated that the mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team in order to comply with the third benchmark. Cohen II 991 F.2d at 898. Id. On January 16, 1996, DED released a Clarification Memorandum, which does not change the existing standards for compliance, but which does provide further information and guidelines for assessing compliance under the three-part test. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 92-2483. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. The agency responsible for administering Title IX is the United States Department of Education (DED), through its Office for Civil Rights (OCR).5 Congress expressly delegated to DED the authority to promulgate regulations for determining whether an athletics program complies with Title IX. After considering a large number of public comments, OCR published the final Policy Interpretation. . For the reasons that follow, we conclude that no exception to the law of the case doctrine applies here and, therefore, that Cohen II's rulings of law control the disposition of this appeal. Of the university-funded teams, 12 were men's teams and 13 were women's teams; of the donor-funded teams, three were women's teams and four were men's teams. 1 On January 17, 2021, the Amendment to the Joint Agreement was appealed by Plaintiff Class Member Objectors. We agree with the prior panel and the district court that Brown's relative interests approach cannot withstand scrutiny on either legal or policy grounds, Cohen II, 991 F.2d at 900, because it disadvantages women and undermines the remedial purposes of Title IX by limiting required program expansion for the underrepresented sex to the status quo level of relative interests, Cohen III, 879 F.Supp. 845, 848-49, 78 L.Ed.2d 663 (1984) (instructing appellate courts to ignore errors that do not affect the essential fairness of the trial). Because Dr. Sabor's direct testimony did not address this issue, it was within the district court's discretion to limit cross-examination to the subject matter of the direct examination. Fed.R.Evid. The prior panel rejected Brown's Fifth Amendment equal protection20 and affirmative action challenges to the statutory scheme. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. This policy is comparable to prong one of the three prong test and is, without a doubt, a quota. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. That notwithstanding, where-as here-the resulting regulation is susceptible to more than one reasonable interpretation, we owe no such deference to the interpretation chosen where the choice is made not by the agency but 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. Citation. at 1176 (citation omitted). at 210 n. 51; see 1990 Investigator's Manual at 27 (explaining that a survey or assessment of interests and abilities is not required by the Title IX regulation or the Policy Interpretation but may be required as part of a remedy when OCR has concluded that an institution's current program does not equally effectively accommodate the interests and abilities of students). 689, 126 L.Ed.2d 656 (1994). at ----, 116 S.Ct. at 1956. . at 2726-27 (construing the prohibition against race discrimination contained in 703(a) and (d) of Title VII, and concluding that an interpretation of the sections that forbade all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected) (internal quotation marks and citations omitted); id. at ----, 116 S.Ct. The Policy Interpretation establishes a three-part test, a two-part test, and factors to be considered in determining compliance under 34 C.F.R. 13. 1313, 1322, 59 L.Ed.2d 533 (1979). E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. Id. 1996) Although written to prevent discrimination based on gender in educational institutions, Title IX perhaps more than any other law has changed the face of the sport and recreation industries. 27. Brown claims error in certain evidentiary rulings made during the trial and in the district court's order of specific relief in place of Brown's proposed compliance plan. A school can satisfy the test in three ways. 578, 584 (W.D.Pa. The plaintiff class comprises all present, future, and potential Brown University women students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown. Brown sought to introduce the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, but was not permitted to do so. A diverse judiciary is vital to maintaining the public's confidence in the courts. 1192, 51 L.Ed.2d 360 (1977), which has not been explicitly overruled. Cohen III, 879 F.Supp. at 3008, in upholding against a Fifth Amendment equal protection challenge a benign race-based affirmative action program that was adopted by an agency at the explicit direction of Congress. . Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) ("Cohen II "). - 991 F.2d 888 (1st Cir. ECF No. at 190 n. 14. The prior panel considered and rejected Brown's approach, observing that Brown reads the full out of the duty to accommodate fully and effectively. Cohen II, 991 F.2d at 899. If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test. Id. of Pa., 812 F.Supp. of Agric., 998 F.2d 824 (10th Cir. In the spring of 1991, Brown announced that it, like many other schools, was in a financial bind, and that, as a belt-tightening measure, it planned to drop four sports from its . Brown has contended throughout this litigation that the significant disparity in athletics opportunities for men and women at Brown is the result of a gender-based differential in the level of interest in sports and that the district court's application of the three-part test requires universities to provide athletics opportunities for women to an extent that exceeds their relative interests and abilities in sports. A. Similarly, the district court's interpretation requires the school to accommodate the interests of every female student until proportionality is reached. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). Brown argued at trial that there is no consistent measure of actual participation rates because team size varies throughout the athletic season, and that there is no consistent measure of actual participation rates because there are alternative definitions of participant that yield very different participation totals. Id. at ----, 116 S.Ct. at 192. In disputes over the representation of women in athletic programs, it is inevitable that statistical evidence will be relevant. First, as Brown points out, the Regulation that includes prong three provides that, in assessing compliance under the regulation, the governing principle in this area is that the athletic interests and abilities of male and female students be equally effectively accommodated. Policy Interpretation, 44 Fed.Reg. See Cohen II, 991 F.2d at 898 n. 15. ), cert. While affirmative action may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. Id. Accordingly, we remand the case to the district court so that Brown can submit a further plan for its consideration. Thirty years ago, a group of female athletes sued Brown University in a landmark case (Cohen v.Brown University) that helped paved the way for women to gain equal footing with men in sports through Title IX.One of the plaintiffs was Lisa Kaplowitz, a 17-year-old star gymnast who testified about the opportunities she lost when the program was initially cut and the unfairness of that decision. Cohen III, 879 F.Supp. We reject both premises.17 Brown's implicit reliance on Adarand as contrary intervening controlling authority that warrants a departure from the law of the case doctrine is misplaced because, while Adarand does make new law, the law it makes is wholly irrelevant to the disposition of this appeal, and, even if Adarand did apply, it does not mandate the level of scrutiny to be applied to gender-conscious government action. As Brown rightly argues, the district court's application of the three-prong test requires Brown to allocate its athletic resources to meet the as-yet-unmet interest of a member of the underrepresented sex, women in this case, while simultaneously neglecting any unmet interest among individuals of the overrepresented sex. at 2724 (holding that Title VII does not prohibit private employers from voluntarily implementing race-conscious measures to eliminate manifest racial imbalances in traditionally segregated job categories); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 19. Although we decline Brown's invitation to find that the district court's remedy was an abuse of discretion, we do find that the district court erred in substituting its own specific relief in place of Brown's statutorily permissible proposal to comply with Title IX by cutting men's teams until substantial proportionality was achieved. On these facts, Brown's failure to accommodate fully and effectively the interests and abilities of the underrepresented gender is clearly established. 978, 1001 (D.R.I.1992) (Cohen I). Appellee's Br. 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. 612 (1974).6 The regulations specifically address athletics at 34 C.F.R. We also find that judicial enforcement of federal anti-discrimination statutes is at least an important governmental objective. Only where the plaintiff meets the burden of proof on these elements and the institution fails to show as an affirmative defense a history and continuing practice of program expansion responsive to the interests and abilities of the . Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection of such teams is based upon competitive skill or the activity involved is a contact sport. On October 27, 2021, the U.S. Court of Appeals for the First Circuit upheld the approval of the Amendment to the Joint Agreement. 379, 384 (1995) (citing Grottveit, supra). Brown's argument that the Supreme Court's recent decision in Adarand Constr., Inc. v. Pena, 515 U.S. 200, 115 S.Ct. As recently set forth in Virginia, [p]arties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. Virginia, 518 U.S. at ----, 116 S.Ct. 136, 139 (1994); Grottveit, supra. 1681(b). The plan sets forth nine steps for its implementation, id. Pub.L. Cohen II held that the Policy Interpretation is entitled to substantial deference because it is the enforcing agency's considered interpretation of the regulation. 991 F.2d at 896-97. (1971), reprinted in 1972 U.S.C.C.A.N. at 898. 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. at 541). Expanding women's athletic opportunities in areas where there is proven ability and interest is the very purpose of Title IX and the simplest, least disruptive, route to Title IX compliance at Brown. at 899 (citations omitted). Subjects. at 189. We also observed, however, that [w]e are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations. 991 F.2d at 906 (citing Wynne v. Tufts Univ. Cohen II, 991 F.2d at 901 (finding no constitutional infirmity, assuming arguendo, that the regulation creates a classification somewhat in favor of women). 12. Although the Court in two places asks whether the State has demonstrated that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives the Court never answers the question presented in anything resembling that form. Id. The district court concluded, and the majority appears to agree, that Brown failed to satisfy prong two because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender. Majority Opinion at 166. 2297, 2303, 124 L.Ed.2d 586 (1993)). Although the three-prong test, even as interpreted by the district court, appears to allow the school the opportunity to show a lack of interest, the majority rejects the best-and perhaps the only-mechanism for making such a showing. We conclude that, even if it can be empirically demonstrated that, at a particular time, women have less interest in sports than do men, such evidence, standing alone, cannot justify providing fewer athletics opportunities for women than for men. See, e.g., Mike Tharp et al., Sports crazy! Brown is no longer an appellant seeking a favorable result in the Court of Appeals. at 2104 (quoting Northeastern Fla. Chapter, Assoc'd Gen'l Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. at 211. 3. 101 F.3d 155 (1st Cir. at n. 1. On remand, the district court's liability analysis explicitly and faithfully adhered to Cohen II's mandate, and we are bound to do the same at this stage of the litigation, absent one of the exceptional circumstances discussed supra. Comm'n, 463 U.S. 582, 103 S.Ct. This relative interests standard would entrench and fix by law the significant gender-based disparity in athletics opportunities found by the district court to exist at Brown, a finding we have held to be not clearly erroneous. Mr. Brown is also the chairman of the firm's Executive Committee and the Managing Partner Elect.Mr. A viable tennis team may require only a single player. First, despite the fact that 76 men and 30 women participated on donor-funded varsity teams, Brown's proposed plan disregarded donor-funded varsity teams. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir. Get Cohen v. Brown University, 991 F.2d 888 (1993), United States Court of Appeals for the First Circuit, case facts, key issues, and holdings and reasonings online today. The law of the case doctrine is akin to the doctrines of collateral estoppel, res judicata, and stare decisis, Joan Steinman, Law Of The Case: A Judicial Puzzle In Consolidated And Transferred Cases And In MultiDistrict Litigation, 135 U.Penn.L.Rev. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. The panel also noted that, in spite of the scant legislative history regarding Title IX as it applies to athletics, Congress heard a great deal of testimony regarding discrimination against women in higher education and acted to reverse the Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555, 573-74, 104 S.Ct. Partially as a consequence of this, participation rates of women are far below those of men.). To the extent that the rate of interest in athletics diverges between men and women at any institution, the district court's interpretation would require that such an institution treat an individual male student's athletic interest and an individual female student's athletic interest completely differently: one student's reasonable interest would have to be met, by law, while meeting the other student's interest would only aggravate the lack of proportionality giving rise to the legal duty. Appellees have argued that the three-prong test does not create a gender classification because the classification applies to both women and men. This is a curious result because the entire three-prong test is based on relative participation rates. Brown University's main campus Credit: Kylie Cooper A group of students on women's athletic teams filed a motion against Brown in 2020 after the university demoted multiple women's varsity teams to club teams, according to a press release from the American Civil Liberties Union of Rhode Island. at 902 (citing 44 Fed.Reg. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. 554, 92d Cong., 1st Sess. (1993) - Free download as PDF File (.pdf) or read online for free. (internal quotation marks and citation omitted). denied, 507 U.S. 1030, 113 S.Ct. 580, 126 L.Ed.2d 478 (1993). at 4-5, and concludes that if the Court determines that this plan is not sufficient to reach proportionality, phase two will be the elimination of one or more men's teams, id. 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. The district court found that the women's gymnastics team had won the Ivy League championship in 1989-90 and was a thriving university-funded varsity team prior to the 1991 demotion; that the donor-funded women's fencing team had been successful for many years and that its request to be upgraded to varsity status had been supported by the athletics director at the time; that the donor-funded women's ski team had been consistently competitive despite a meager budget; and that the club-status women's water polo team had demonstrated the interest and ability to compete at full varsity status. v. Alabama ex rel. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. In response, appellees cite Kelley v. Board of Trustees, 35 F.3d 265 271 (1994), for the proposition that the three-prong test does not constitute a quota, because it does not require any educational institution to grant preferential or disparate treatment to the gender underrepresented in that institution's athletic program. In its discussion, the Court stated that, in order to prevail in a gender case, the State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Id. We emphasize that, on the facts of this case, Brown's lack-of-interest arguments are of no consequence. Massachusetts Court Clarifies Recently Enacted Bond Provision in Zoning and Comprehensive Permit Appeals. Under the new standards established in those cases, Cohen II is flawed both because it applies a lenient version of intermediate scrutiny that is impermissible following Adarand and because it did not apply the exceedingly persuasive justification test of Virginia. Contact us. 1681, et seq. 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. at 1064 n. 16; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. As to the propriety of Brown's proposal to come into compliance by the addition of junior varsity positions, the district court held: Positions on distinct junior varsity squads do not qualify as intercollegiate competition opportunities under the Policy Interpretation and should not be included in defendants' plan. denied sub nom. 706, 721-22, 102 L.Ed.2d 854 (1989). The instant case should be distinguished from Califano for two reasons. at 907, and makes it virtually impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. The plaintiff class comprises all present, future, and potential Brown University women students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown. According to the district court, the unmet interests of the underrepresented sex must be completely accommodated before any of the interest of the overrepresented gender can be accommodated.28. Id. We note that Brown presses its relative interests argument under both prong one and prong three. Brown's talismanic incantation of affirmative action has no legal application to this case and is not helpful to Brown's cause. Amy Cohen (plaintiff), a member of the women's gymnastics team, and several other student-athletes filed suit against Brown alleging that the institution violated Title IX. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny . I see no possible justification for this interpretation-the regulation is intended to protect against discrimination, not to promote athletics on college campuses. There can be no doubt that Title IX has changed the face of women's sports as well as our society's interest in and attitude toward women athletes and women's sports. See Cohen v. Brown Univ., 16 F.4th 935, 940-41 (1st Cir. In order to bring Brown into compliance with prong one under defendants' Phase II, I would have to order Brown to cut enough men's teams to eradicate approximately 213 men's varsity positions. at ----, 115 S.Ct. Id. Section 1681(b) provides yet another reason why the district court's reading of prong three is troublesome and why Brown's reading is a reasonable alternative. Under the district court's interpretation, a school facing budgetary constraints must, in order to comply with prong two, increase the opportunities available to the underrepresented gender, even if it cannot afford to do so. denied, 502 U.S. 862, 112 S.Ct. Law School Case Brief; Cohen v. Brown Univ. 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. See, e.g., Swann v. Charlotte-Mecklenburg Bd. at ----, 116 S.Ct. 1195, 1199, 67 L.Ed.2d 428 (1981); Hogan, 458 U.S. at 724, 102 S.Ct. The most that can be demanded is that athletics be provided in a non-discriminatory manner. at 469, 109 S.Ct. It is not necessary to equate race and gender to see that the logic of Adarand-counseling that we focus on the categories and justifications proffered rather than the labels attached-applies in the context of gender. at 2274, which requires that [p]arties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action, id. Because the classification applies to both women and men. ) in future varsity schedules women... And men. ) on college campuses Joint Agreement was appealed by class! 17, 2021, the district court so that Brown presses its relative interests argument both! 548, 553, 104 S.Ct costs on appeal to either party because the classification applies to both and! L.Ed.2D 360 ( 1977 ), which has not been explicitly overruled 's talismanic incantation of affirmative action to... 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