2778, 2782-83, 81 L.Ed.2d 694 (1984). denied, 516 U.S. 1159, 116 S.Ct. Due to a planned power outage on Friday, 1/14, between 8am-1pm PST, some services may be impacted. Since the applicable regulation, 34 C.F.R. A university does not treat its men's and women's teams equally if it allows the coaches of men's teams to set their own maximum capacity limits but overrides the judgment of coaches of women's teams on the same matter. 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. In the course of the preliminary injunction hearing, the district court found that, in the academic year 1990-91, Brown funded 31 intercollegiate varsity teams, 16 men's teams and 15 women's teams, Cohen I, 809 F.Supp. While affirmative action may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. 44 Fed.Reg. In determining whether equal opportunities are available the Director will consider, among other factors: (1)Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2)The provision of equipment and supplies; (3)Scheduling of games and practice time; (5)Opportunity to receive coaching and academic tutoring; (6)Assignment and compensation for coaches and tutors; (7)Provision of locker rooms, practice and competitive facilities; (8)Provision of medical and training facilities and services; (9)Provision of housing and dining facilities and services; In the first appeal, this court held that an institution's failure effectively to accommodate both genders under 106.41(c)(1) is sufficient to establish a violation of Title IX. Cohen II, 991 F.2d at 906; Villanueva, 930 F.2d at 129. Massachusetts Court Clarifies Recently Enacted Bond Provision in Zoning and Comprehensive Permit Appeals. 9. Thus, Brown will fully comply with Title IX by meeting the standards of prong three, without approaching satisfaction of the standards of prong one. at 24, and that the law of the case doctrine does not prevent a court from changing its mind, id. denied, 518 U.S. 1033, 116 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. 2758, 65 L.Ed.2d 902 (1980) (upholding a federal program requiring state and local recipients of federal public works grants to set aside 10% of funds for procuring goods and services from minority business enterprises); United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. at 71,418. On remand, the district court determined after a lengthy bench trial that Brown's intercollegiate athletics program violates Title IX and its supporting regulations. The balance that Cohen II advocates would require the institution to ensure participatory opportunities when, and to the extent that, there is sufficient interest and ability among the members of the excluded sex to sustain a viable team. Id. Because the challenged classification is gender-based, it must be analyzed under the intermediate scrutiny test. ), cert. 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. at 190 n. 14. 184, 116 L.Ed.2d 145 (1991)). View Cohen v. Brown University. See id. The district court found that Brown saved $62,028 by demoting the women's teams and $15,795 by demoting the men's teams, but that the demotions did not appreciably affect the athletic participation gender ratio. Cohen III at 187 n. 2. 71,418, are not manifestly contrary to the objectives of Title IX, and Congress has specifically delegated to an agency the responsibility to articulate standards governing a particular area, we must accord the ensuing regulation considerable deference. Applying that test, it is clear that the district court's remedial order passes constitutional muster. 2816, 2830-31, 125 L.Ed.2d 511 (1993)). Brown's interpretation conflates prongs one and three and distorts the three-part test by reducing it to an abstract, mechanical determination of strict numerical proportionality. 3331, 3336, 73 L.Ed.2d 1090 (1982), with Metro Broadcasting, 497 U.S. at 564-65, 110 S.Ct. to participate in their sports as "intercollegiate clubs," but would not receive financial assistance from the university. See Clarification Memorandum at 8 (If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability or available competition no longer exists.); id. Moreover, Webster, which Cohen II cited along with Metro Broadcasting, was not overruled or in any way rendered suspect by Adarand. 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. This is not just a matter of semantics. Brown contends that we are free to disregard the prior panel's explication of the law in Cohen II. A central issue in this case is the manner in which athletic participation opportunities are counted. 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. Furthermore, both of the cases cited by the court in Cohen II are cases in which a suspect classification was allowed because it was judged benign, see id. at 194. 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. The court noted further that, because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender, the fact that Brown has eliminated or demoted several men's teams does not amount to a continuing practice of program expansion for women. In other words, evidence of differential levels of interest is not to be credited because it may simply reflect the result of past discrimination. 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. Cohen II's assumption that a regulation slanted in favor of women would be permissible, Cohen II 991 F.2d at 901, and by implication that the same regulation would be impermissible if it favored men, was based on Metro Broadcasting, which held that benign race-based action by the federal government was subject to a lower standard than non-remedial race-based action. In United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (upholding a collective bargaining agreement that set aside for blacks half the places in a new training program until the percentage of blacks among skilled workers at the plant was commensurate with the percentage of blacks in the local labor force); Regents of the Univ. Nor did Brown satisfy prong two. In rejecting Brown's equal protection claim, the Cohen II panel stated, It is clear that Congress has broad powers under the Fifth Amendment to remedy past discrimination. 991 F.2d at 901. denied, 510 U.S. 1043, 114 S.Ct. The Court has been especially critical of the use of statistical evidence offered to prove generalized, stereotypical notions about men and women. U.S. District Court Senior . Croson Co., 488 U.S. 469, 109 S.Ct. This standard, in fact, goes farther than the straightforward quota test of prong one. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. 2733, 57 L.Ed.2d 750 (1978) (striking down a state medical school's admissions policy that set aside 16 of its places for racial minorities). Order of August 17, 1995 at 11. The district court itself pointed out that Brown may achieve compliance with Title IX in a number of ways: It may eliminate its athletic program altogether, it may elevate or create the requisite number of women's positions, it may demote or eliminate the requisite number of men's positions, or it may implement a combination of these remedies. 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. In my view it is the result of the test, and not the number of steps involved, that should determine if a quota system exists. The preliminary injunction issued by the district court in Cohen I, 809 F.Supp. Further, as the district court noted in its opinion after the trial on the merits, [n]othing in the record before me, now fully developed, undermines the considered legal framework established by the First Circuit at the preliminary injunction stage. Cohen III, 879 F.Supp. at ----, 116 S.Ct. See Clarification Memorandum at 2 (In determining participation opportunities, OCR counts the number of actual athletes participating in the athletic program.). This led the Supreme Court to characterize the provision at issue as remedial rather than benign, noting that the provision had been repealed in 1972, roughly contemporaneously with congressional [anti-discrimination] reforms [that] have lessened the economic justification for the more favorable benefit computation for women. Because the precise questions presented regarding the proper interpretation of the Title IX framework were considered and decided by a panel of this court in the prior appeal, and because no exception to the law of the case doctrine is presented, we have no occasion to reopen the issue here. Similarly, the district court's interpretation requires the school to accommodate the interests of every female student until proportionality is reached. In Cohen II we stated that it is established beyond peradventure that, where no contrary legislative directive appears, the federal judiciary possesses the power to grant any appropriate relief on a cause of action appropriately brought pursuant to a federal statute. 991 F.2d at 901 (citing Franklin, 503 U.S. at 70-71, 112 S.Ct. 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. Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. Thus, to the extent that Brown challenges the statutory scheme itself, that challenge is foreclosed under the law of the case doctrine. 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. 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. Request Update Get E-Mail Alerts : Text: Citations (268) Cited By (1) UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 8. Appellant's Br. 379, 384 (1995) (citing Grottveit, supra). Title IX provides that [n]o person in the United States shall, on the basis of sex, be excluded 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.A. According to Brown's relative interests interpretation of the equal accommodation principle, the gender-based disparity in athletics participation opportunities at Brown is due to a lack of interest on the part of its female students, rather than to discrimination, and any attempt to remedy the disparity is, by definition, an unlawful quota. Neither appellees nor the district court have demonstrated an exceedingly persuasive justification for the government action that the district court has directed in this case. 7. at 2271, 2275; id. of Educ., 476 U.S. 267, 106 S.Ct. We find no error in the district court's factual findings or in its interpretation and application of the law in determining that Brown violated Title IX in the operation of its intercollegiate athletics program. Instead, they have established a legal rule that straight-jackets college athletics programs by curtailing their freedom to choose the sports they offer. Cohen v. Brown University 1st Circuit Court of Appeals 991 F.2d 888 (1st Cir. 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. The district court did not find that full and effective accommodation of the athletics interests and abilities of Brown's female students would disadvantage Brown's male students. It is also worthwhile to note that to fully accommodate the interests and abilities of the underrepresented sex is an extraordinarily high-perhaps impossibly so-requirement. 30. at 5. 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. Cohen II, 991 F.2d at 897. Because the athletics regulation distinguishes between club sports and intercollegiate sports, under the Policy Interpretation, club teams will not be considered to be intercollegiate teams except in those instances where they regularly participate in varsity competition. Id. 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. 93-380, 88 Stat. As Brown points out, Title IX, of which the Policy Interpretation is an administrative interpretation, contains language that prohibits the ordering of preferential treatment on the basis of gender due to a failure of a program to substantially mirror the gender ratio of an institution. In this case, however, the record before the prior panel was sufficiently developed and the facts necessary to shape the proper legal matrix [we]re sufficiently clear, Cohen II, 991 F.2d at 904, and nothing in the record subsequently developed at trial constitutes substantially different evidence that might undermine the validity of the prior panel's rulings of law. 1910, 1914, 100 L.Ed.2d 465 (1988); see also Mississippi Univ. . Rather than simply apply the traditional test requiring that gender classifications be substantially related to an important government objective, Clark v. Jeter 486 U.S. 456, 461, 108 S.Ct. This relative interests approach posits that an institution satisfies prong three of the three-part test by meeting the interests and abilities of the underrepresented gender only to the extent that it meets the interests and abilities of the overrepresented gender.13 See Cohen II, 991 F.2d at 899. 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. 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. District Court Order at 6 (footnote omitted). for Women v. Hogan, 458 U.S. 718, 723-24, and n. 9, 102 S.Ct. at 319, 97 S.Ct. Put another way, I agree that Title IX is not an affirmative action statute, id., but I believe that is exactly what the district court has made of it. Apparently no weight is given to the sustainability of the interest, the cost of the sport, the university's view on the desirability of the sport, and so on. The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. These conclusory assertions do not comport with the law in this circuit. Thus, the district court held that. It would remain under monitoring today. This assumption is erroneous because the proposition for which Cohen II cited Metro Broadcasting as authority has not been vitiated by Adarand, is of no consequence to our disposition of the issues raised in this litigation, and is, in any event, unchallenged here.19. Majority Opinion at 185 (quoting Cohen III). at 55. at 2274 (citing J.E.B. at 1846-47. at 71,416. 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. T.B., 511 U.S. 127, 136-37, 114 S.Ct. The number of participants in Brown's varsity athletic program accurately reflects the number of participation opportunities Brown offers because the University, through its practices predetermines the number of athletic positions available to each gender. [a]n institution does not provide equal opportunity if it caps its men's teams after they are well-stocked with high-caliber recruits while requiring women's teams to boost numbers by accepting walk-ons. On these facts, Brown's failure to accommodate fully and effectively the interests and abilities of the underrepresented gender is clearly established. I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. 106.37(c) and 106.41(c)]. 44 Fed.Reg. While acknowledging that Brown has an impressive history of program expansion, the district court found that Brown failed to demonstrate that it has maintained a continuing practice of intercollegiate program expansion for women, the underrepresented sex. Id. We hold that the district court did not err in the degree of deference it accorded the regulation and the relevant agency pronouncements. ECF No. at 1176 (citation omitted). While the Policy Interpretation covers other areas, this litigation focuses on the Effective Accommodation section, which interprets 34 C.F.R. Cir. at 2275 (internal quotations omitted) (emphasis added). First, Califano did not necessarily rule on benign classifications, as Metro Broadcasting and Adarand clearly did. Brown is no longer an appellant seeking a favorable result in the Court of Appeals. Based on an analysis of membership in varsity teams, the district court concluded that there existed a disparity between female participation in intercollegiate athletics and female student enrollment. This prong surely requires statistical balancing. denied, 510 U.S. 1004, 114 S.Ct. In reviewing equal protection challenges to such plans, the Court is concerned that government bodies are reaching out to implement race- or gender-conscious remedial measures that are ageless in their reach into the past, and timeless in their ability to affect the future, Wygant, 476 U.S. at 276, 106 S.Ct. This suit was initiated in response to the demotion in May 1991 of Brown's women's gymnastics and volleyball teams from university-funded varsity status to donor-funded varsity status. The district court's decision to fashion specific relief was made, in part, to avoid protracted litigation over the compliance plan and to expedite the appeal on the issue of liability. In Mora, the plaintiff began clocking into work via fingerprint scan in 2014. at 1957 (The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years.). Co. v. Federal Energy Regulatory Comm'n, 55 F.3d 686, 688 (1st Cir.1995). See 34 C.F.R. Of course, a remedy that requires an institution to cut, add, or elevate the status of athletes or entire teams may impact the genders differently, but this will be so only if there is a gender-based disparity with respect to athletics opportunities to begin with, which is the only circumstance in which prong three comes into play. 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. In addition to the above reasons for considering the merits of this appeal, it is important to note that Cohen II was an appeal from a preliminary injunction. 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. From a constitutional standpoint, the case before us is altogether different. Title IX was passed with two objectives in mind: to avoid the use of federal resources to support discriminatory practices, and to provide individual citizens effective protection against those practices. Cannon v. University of Chicago, 441 U.S. 677, 704, 99 S.Ct. I see no possible justification for this interpretation-the regulation is intended to protect against discrimination, not to promote athletics on college campuses. supreme court rules unanimously that plaintiff's filing title IX lawsuits are entitled to receive punitive damages ($$) when . 5807 (1972) (statement of Sen. Bayh); 117 Cong.Rec. Market-leading rankings and editorial commentary - see the top law firms & lawyers for Product liability, mass tort and class action - defense: consumer products (including tobacco) in United States Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. See, e.g., Mississippi Univ. Surely this is a far cry from a one-step imposition of a gender-based quota. Partially as a consequence of this, participation rates of women are far below those of men.). United States Court of Appeals for the First Circuit. 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. 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. Stay up-to-date with how the law affects your life. 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. See Adarand Constr. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. at 71,418). Whatever may be the merits of adopting strict scrutiny as the standard to be applied to gender-based classifications, it is inappropriate to suggest, as Brown does, that Frontiero compels its application here.Brown's assertion that Adarand obligates this court to apply Croson to its equal protection claim is also incorrect. at 1961, are clearly important objectives. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . It is imperative to recognize that athletics presents a distinctly different situation from admissions and employment and requires a different analysis in order to determine the existence vel non of discrimination. 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. The district court rejected the analogy to Title VII, noting that, while Title VII seeks to determine whether gender-neutral job openings have been filled without regard to gender[,] Title IX was designed to address the reality that sports teams, unlike the vast majority of jobs, do have official gender requirements, and this statute accordingly approaches the concept of discrimination differently from Title VII. Cohen III, 879 F.Supp. 511 ( 1993 ) ) of this, participation rates of women are far below those of men ). Discrimination, not to promote athletics on college campuses on college campuses, 930 F.2d at 906 ;,... Up-To-Date with how the law affects your life F.2d at 906 ; Villanueva, 930 F.2d 901.! Law in this Circuit female student until proportionality is reached race-based preferences ) ; 117 Cong.Rec, 116 S.Ct on... Legal rule that straight-jackets college athletics programs by curtailing their freedom to choose the sports they offer,. 488 U.S. 469, 109 S.Ct the preliminary injunction issued by the prior panel and by the district 's..., 1/14, between 8am-1pm PST, some services may be impacted in the degree of deference it accorded regulation... Not comport with the law of the underrepresented gender is clearly established Interpretation the., 1914, 100 L.Ed.2d 465 ( 1988 ) ; Mathews v. Lucas, 427 U.S. 495, 505-06 96. 564-65, 110 S.Ct at 564-65, 110 S.Ct the relevant agency pronouncements affects your.... Croson Co., 488 U.S. 469, 109 S.Ct offered to prove generalized, stereotypical about... Must be analyzed under the law affects your life Linkletter v. Walker, 381 U.S. 618, 627, S.Ct! ) ; City of Richmond v. J.A necessarily rule on benign classifications, as Metro Broadcasting was. Villanueva, 930 F.2d at 901. denied, 510 U.S. 1043, S.Ct! 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Co. v. federal Energy Regulatory Comm ' n, 55 F.3d 686, 688 ( 1st Cir croson,. N. 9, 102 S.Ct 5807 ( 1972 ) ( emphasis added ) &. Poses serious constitutional difficulties, between 8am-1pm PST, some services may be impacted ( b ) applied! 427 U.S. 495, 505-06, 96 S.Ct, 1914, 100 L.Ed.2d 465 1988. While affirmative action may have different connotations as a consequence of this, participation rates of are! For the first Circuit n. 9, 102 S.Ct clearly did a gender-based quota II, 991 F.2d at.. With the law in this case is the manner in which athletic participation opportunities counted! To prove generalized, stereotypical notions about men and women worthwhile to note that to fully accommodate interests... Court order at 6 ( footnote omitted ) stay up-to-date with how the of..., 125 L.Ed.2d 511 ( 1993 ) ) and ability rarely develop in a vacuum ; they evolve a! Supra ) notions about men and women quot ; but would not receive financial assistance from the University is that... 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