at 210-13. Athletics are part of that curriculum. A group of states and local governments alleged that EPA has abdicated it responsibility to regulate the emission of greenhouse gases under the Clean Air Act. A second Supreme Court case has also made it necessary to review our decision in Cohen II. But any such departure demands special justification.) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. at 46, 54, 125, 129, 152, 177, 299-300 (1975); 118 Cong.Rec. As a result, individual male and female students would be precluded from competing against each other for scarce resources; they would instead compete only against members of their own gender. While it is difficult to point to one particular case and hold it up as the definitive . Since Cohen II, however, Metro Broadcasting has been overruled, at least in part. 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. Given our disposition of this claim, we do not address these arguments. (quoting the Policy Interpretation, 44 Fed.Reg. Also consistent with the school desegregation cases, the substantial proportionality test of prong one is applied under the Title IX framework, not mechanically, but case-by-case, in a fact-specific manner. (citing Cox at 34, quoting N.Y.Times, June 27, 1975, at 16, col. 4). 28. Brown contends that we are free to disregard the prior panel's explication of the law in Cohen II. Under the three-part test, the institution may also excuse the disparity under prong two, by showing a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the [underrepresented gender], 44 Fed.Reg. 1419, --------- and n. 6, 128 L.Ed.2d 89 (1994)), and Mississippi Univ. The school argues women are less interested in sports than men. Instead, they have established a legal rule that straight-jackets college athletics programs by curtailing their freedom to choose the sports they offer. 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 71,416. The preliminary injunction issued by the district court in Cohen I, 809 F.Supp. 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. Injury is Under Cohen II's controlling interpretation, prong three demands not merely some accommodation, but full and effective accommodation. (Cohen v. Brown University, (1st Cir. Id. 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. 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. However, although Congress could easily have done so, it did not ban affirmative action or gender-conscious remedies under Title IX. As Cohen II recognized, [t]he scope and purpose of Title IX, which merely conditions government grants to educational institutions, are substantially different from those of Title VII, which sets basic employment standards. 991 F.2d at 902 (citation omitted). at 897. E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. and Tel. 2462, 2590-92 (Additional Views); 117 Cong.Rec. Prong one, for example, requires that participation opportunities be provided proportionately to enrollment, but does not mandate any absolute number of such opportunities. Second, Adarand does not even discuss gender discrimination, and its holding is limited to explicitly race-based classifications. 1028, 1038, 117 L.Ed.2d 208 (1992). 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.)). Accord Horner, 43 F.3d at 274-75; Kelley, 35 F.3d at 270; Favia v. Indiana Univ. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. 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. Section 1681(b) provides: Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area. What is important for our purposes is that the Supreme Court appears to have elevated the test applicable to sex discrimination cases to require an exceedingly persuasive justification. This is evident from the language of both the majority opinion and the dissent in Virginia. In 2018, the defendant established a . First, as explained earlier, Adarand and Croson apply to review of legislative affirmative action schemes. As explained previously, Title IX as it applies to athletics is distinct from other anti-discrimination regimes in that it is impossible to determine compliance or to devise a remedy without counting and comparing opportunities with gender explicitly in mind. Cohen II, 991 F.2d at 901. Courts and institutions must have some way of determining whether an institution complies with the mandate of Title IX and its supporting regulations to provide equal athletics opportunities for both genders, despite the fact that the institution maintains single-sex teams, and some way of fashioning a remedy upon a determination that the institution does not equally and effectively accommodate the interests and abilities of both genders. Moreover, Webster, which Cohen II cited along with Metro Broadcasting, was not overruled or in any way rendered suspect by Adarand. 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. at 2113. Idk. 15. at ----, 116 S.Ct. Order of August 17, 1995 at 11. 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. 19. Co. v. Walbrook Ins. Brown v. Martinez: accidentally shot watermelon stealer Discipline Parents and in loco parentis are . Under Brown's interpretation of the three-part test, there can never be a remedy for a violation of Title IX's equal opportunity mandate. Indeed, every circuit court to have reviewed a Title IX claim of discrimination in athletics since Cohen II was decided is in accord with its explication of the Title IX regime as it applies to athletics. To accomplish these objectives, Congress directed all agencies extending financial assistance to educational institutions to develop procedures for terminating financial assistance to institutions that violate Title IX. If so, the inquiry ends and Brown should be judged to be in compliance. He was elected in 2014 as a Judge of the Civil Court, NY County, and has also served, by designation . 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. This approach is entirely contrary to Congress's unmistakably clear mandate that educational institutions not use federal monies to perpetuate gender-based discrimination, id. There is little more than that, because Congress adopted Title IX as a floor amendment without committee hearings or reports. No. of Educ., 402 U.S. 1, 25, 91 S.Ct. Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. Trial on the merits has served to focus these questions and to provide background that allows us to consider these questions in the proper context and in detail. Id. Id. As a Division I institution within the National Collegiate Athletic Association (NCAA) with respect to all sports but football, Brown participates at the highest level of NCAA competition.2 Cohen III, 879 F.Supp. App. In particular, this Policy Interpretation provides a means to assess an institution's compliance with the equal opportunity requirements of the regulation which are set forth at [34 C.F.R. at 2271, 2275; id. After mapping Title IX's rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties' arguments, we affirm. 1192, 51 L.Ed.2d 360 (1977) (sex)). 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). 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. 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. While the Title IX regime permits institutions to maintain gender-segregated teams, the law does not require that student-athletes attending institutions receiving federal funds must compete on gender-segregated teams; nor does the law require that institutions provide completely gender-integrated athletics programs.14 To the extent that Title IX allows institutions to maintain single-sex teams and gender-segregated athletics programs, men and women do not compete against each other for places on team rosters. Third, even if Adarand did apply, it does not dictate the level of scrutiny to be applied in this case, as Brown concedes. 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. A school can satisfy the test in three ways. . The district court also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams were established before 1927, virtually all of the women's varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. This is a successful motion to enforce a 1998 court judgment against Brown University for violating Title IX. Sign in to add some. Snyder v. Turk: doctor shoved nurse into cavity . We therefore affirm in all respects the district court's analysis and rulings on the issue of liability. at 1771. 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. 17. at 27. We agree with the district court that Brown's proposed plan fell short of a good faith effort to meet the requirements of Title IX as explicated by this court in Cohen II and as applied by the district court on remand. See Adarand Constr. Brown's approach fails to recognize that, because gender-segregated teams are the norm in intercollegiate athletics programs, athletics differs from admissions and employment in analytically material ways. Cohen III, 879 F.Supp. at ----, 115 S.Ct. 515 U.S. at ----, 115 S.Ct. 3. Furthermore, the majority recognizes that institutions are entitled to use any nondiscriminatory method of their choosing to determine athletic interests. Although Cohen II, in its brief discussion of the equal protection issue, does not specify the precise standard it used, the court stated that even if we were to assume that the regulation creates a gender classification slanted somewhat in favor of women, we would find no constitutional infirmity. Cohen II, 991 F.2d at 901. 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. The injury in cases of this kind is that a discriminatory classification prevent [s] competition on an equal footing. Adarand, 515 U.S. at ----, 115 S.Ct. 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. Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. In counting participation opportunities, therefore, it does not make sense to include in the calculus athletes participating in contact sports that include only men's teams. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. at 460-61 (proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause); Cannon, 441 U.S. at 681 n. 2, 99 S.Ct. Id. at 56 (citing Powers v. Ohio, 499 U.S. 400, 409-11, 111 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. 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. It was perfectly acceptable, therefore, for the agency to chart a different course and adopt an enforcement scheme that measures compliance by analyzing how a school has allocated its various athletic resources. denied, 510 U.S. 1004, 114 S.Ct. See, e.g., Frank DeFord, The Women of Atlanta, Newsweek, June 10, 1996, at 62-71; Tharp, supra, at 33; Robert Kuttner, Vicious Circle of Exclusion, Washington Post, September 4, 1996, at A15. Horner, 43 F.3d at 273 n. 6 (citing Cohen v. Brown Univ., 991 F.2d 888, 896 n. 10 (1st Cir.1993)). Prior to the trial on the merits that gave rise to this appeal, the district court granted plaintiffs' motion for class certification and denied defendants' motion to dismiss. at 71,417). Id. at 1001, will remain in effect pending a final remedial order. 978 (D.R.I. 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). In Metro Broadcasting, the Court upheld two federally mandated race-based preference policies under intermediate scrutiny. at 24, and that the law of the case doctrine does not prevent a court from changing its mind, id. 92-2483. Where such a disparity has been established, the inquiry under prong three is whether the athletics interests and abilities of the underrepresented gender are fully and effectively accommodated, such that the institution may be found to comply with Title IX, notwithstanding the disparity.23. In Adarand, the Supreme Court held that all racial classifications must be analyzed under strict scrutiny. Adarand, 515 U.S. at ----, 115 S.Ct. at 55. 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. 25. Brown contends that the district court misconstrued and misapplied the three-part test. For this reason, and because recruitment of interested athletes is at the discretion of the institution, there is a risk that the institution will recruit only enough women to fill positions in a program that already under represents women, and that the smaller size of the women's program will have the effect of discouraging women's participation. 34, 40 (1977) (Cox)), prompting former HEW Secretary Caspar Weinberger to remark, I had not realized until the comment period that athletics is the single most important thing in the United States, id. This precedent-setting ruling, which set the standard for determining a school's compliance with Title IX in . Ready, set, go. 106.41 (1995), provides: (a)General. 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. The Court has been especially critical of the use of statistical evidence offered to prove generalized, stereotypical notions about men and women. In Marengi v. 6 Forest Road LLC, 491 Mass. of the Commonwealth Sys. 30,407 (1971) (same)). Rather than conduct an inquiry into whether Title IX and its resulting interpretations are benign or remedial, and conscious of the fact that labels can be used to hide illegitimate notions of inferiority or simple politics just as easily in the context of gender as in the context of race, we should now follow Adarand's lead and subject all gender-conscious government action to the same inquiry.25. During the same period, Brown's undergraduate enrollment comprised 5,722 students, of which 48.86% (2,796) were men and 51.14% (2,926) were women. 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. 8. 1681-1688 (1988) ("Title IX"). Subsection (b) also provides, however, that it shall not be construed to prevent the consideration in any proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex. Id. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). For simplicity, we treat DED as the promulgating agency. Cases and commentators sometimes treat cases involving involuntarily implemented plans-e.g., plans adopted pursuant to a consent decree or a contempt order-as affirmative action cases. Please try again. & Constr. Cohen v. Brown Univ., 809 F.Supp. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. Id. 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. See, e.g., Mike Tharp et al., Sports crazy! 95-2205 in the Court of Appeals for the First Circuit. It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. 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. 23. We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. Had Congress intended to entrench, rather than change, the status quo-with its historical emphasis on men's participation opportunities to the detriment of women's opportunities-it need not have gone to all the trouble of enacting Title IX. We are left with the explanations discussed in Cohen II to the effect that Congress conducted hearings on the subject of discrimination against women in education. how many athletic teams in Brown University by 1991? In the first appeal, this court rejected Brown's Fifth Amendment equal protection challenge to the statutory scheme. 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). Court records for this case are available from U.S. Court Of Appeals, First Circuit. at 11. at ----, 116 S.Ct. Ryan v. Royal Ins. at 8-9 n. 2 (While [other] indications of interest may be helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indicia[,] an institution is expected to meet the actual interests and abilities of its students and admitted students.). v. Alabama ex rel. 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. With these precepts in mind, we first examine the compliance plan Brown submitted to the district court in response to its order. This argument rests, in part, upon Brown's reading of 20 U.S.C. Defendant: Brown University Court that made decision on the case: U.S. District Court for the District of Rhode Island Facts of the Case In the year 1996, Cohen set out a lawsuit against Brown University because she believed that Brown was violating Title IX rules. Brown's argument that the Supreme Court's recent decision in Adarand Constr., Inc. v. Pena, 515 U.S. 200, 115 S.Ct. To adopt the relative interests approach would be, not only to overrule Cohen II, but to rewrite the enforcing agency's interpretation of its own regulation so as to incorporate an entirely different standard for Title IX compliance. 611(b); see Ferragamo v. Chubb Life Ins. First, we now have a full record before us and a set of well-defined legal questions presented by the appellant. at 541). 11. 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. . It is well established, however, that a decision of the Supreme Court, that is rendered between two appeals and is irreconcilable with the decision on the first appeal, must be followed on the second appeal. See also Weber, 443 U.S. at 201-02, 99 S.Ct. The district court ordered Brown to elevate and maintain women's gymnastics, women's water polo, women's skiing, and women's fencing to university-funded varsity status. Id. We think it important to bear in mind, however, the congressional concerns that inform the proper interpretation of this provision. 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 underrepresented gender will liability be established. Nevertheless, the doctrine serves important goals and must be treated respectfully and, in the absence of exceptional circumstances, applied according to its tenor. Rivera-Martinez, 931 F.2d at 151. 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 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. 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. 1364, 1370-71, 113 L.Ed.2d 411 (1991)). HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. 1681, et seq. v. Alabama ex rel. at 205. 2000e-2(j), and was specifically designed to prohibit quotas in university admissions and hiring, based upon the percentage of individuals of one gender in a geographical community. 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. As a result, I opt for Brown's construction of prong three, which, as we have discussed, infra, is also a reasonable reading. 1817, 1821-22, 18 L.Ed.2d 1010 (1967) (stating that even though the statute at issue applied equally to members of different racial classifications, it still implicated race-related Equal Protection concerns, since the statute itself contained race-conscious classifications). 101 F.3d 155 (1st Cir. at 2288 (Rehnquist, C.J., concurring in the judgment), the standard applied to gender-based classifications since 1976, when it was first announced in Craig v. Boren, 429 U.S. at 197, 97 S.Ct. While we have acknowledged that there are exceptions to the law of the case doctrine, we have emphasized that the circumstances in which they apply are rare. 1681(a) (1988). Id. at 2274. In Fullilove, a plurality of the Court applied a standard subsequently acknowledged to be intermediate scrutiny, see Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. To do so, the University must disregard the expressed athletic interests of one gender while providing advantages for others. Counting new women's junior varsity positions as equivalent to men's full varsity positions flagrantly violates the spirit and letter of Title IX; in no sense is an institution providing equal opportunity if it affords varsity positions to men but junior varsity positions to women. The methods of determining interest and ability do not disadvantage the members of an underrepresented sex;c.The methods of determining ability take into account team performance records; andd. at 204, 97 S.Ct. at 1195-96. Sch., 503 U.S. 60, 76, 112 S.Ct. 1. Cohen II, 991 F.2d at 903. 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). While the Supreme Court in Virginia acknowledged that [p]hysical differences between men and women are enduring, id. In the first appeal, a panel of this court elucidated the applicable legal framework, upholding the substance of the district court's interpretation and application of the law in granting plaintiffs' motion for a preliminary injunction,1 and rejecting essentially the same legal arguments Brown makes here. at 2112 (the equal protection guarantee protect[s] persons, not groups), the only way to determine whether the rights of an individual athlete have been violated and what relief is necessary to remedy the violation is to engage in an explicitly gender-conscious comparison. For the purposes of this appeal, we must review findings of fact under a clearly erroneous standard, Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1069 (1st Cir.1995) and findings of law de novo, Portsmouth v. Schlesinger, 57 F.3d 12, 14 (1st Cir.1995). Massachusetts Court Clarifies Recently Enacted Bond Provision in Zoning and Comprehensive Permit Appeals. (c)Equal Opportunity. 1192, 1194-95, 51 L.Ed.2d 360 (1977); Frontiero v. Richardson, 411 U.S. 677, 684-86, 93 S.Ct. Brown's efforts to circumvent the controlling effect of Cohen II are unavailing, however, because, under the law of the case doctrine, we are bound in this appeal, as was the district court on remand, by the prior panel's rulings of law. at 895. Id. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. I am in square disagreement with the majority, who believe that [n]o aspect of the Title IX regime at issue in this case mandates gender-based preferences or quotas. Majority Opinion at 170. at 214. Each prong of the Policy Interpretation's three-part test determines compliance in this manner.
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