Therefore, we review the constitutionality of the district court's order requiring Brown to comply with Title IX by accommodating fully and effectively the athletics interests and abilities of its women students. T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI. In short, Brown treats the three-part test for compliance as a one-part test for strict liability. 2997, 111 L.Ed.2d 445 (1990) (race); Califano v. Webster, 430 U.S. 313, 97 S.Ct. at 189. In so doing, we upheld the district court's analysis and ruled that an institution violates . 92-2483. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . Brown violated Title IX in 2020 when it eliminated 11 sports at 1949 n. 2 (observing with respect to the relevance of the University of Chicago's statistical evidence regarding the small number of female applicants to its medical school, in comparison to male applicants, that the dampening impact of a discriminatory rule may undermine the relevance of figures relating to actual applicants). at 55. Agency responsibility for administration of Title IX shifted from the Department of Health, Education and Welfare (HEW) to DED when HEW split into two agencies, DED and the Department of Health and Human Services. The Clarification Memorandum contains many examples illustrating how institutions may meet each prong of the three-part test and explains how participation opportunities are to be counted under Title IX. 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. See Miller, 515 U.S. at ----, 115 S.Ct. at 2291 (Scalia, J. dissenting). at 71,418, in which case the compliance inquiry ends without reaching prong three. Id. Thus, Title IX and Title VI share the same constitutional underpinnings. 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. at 25; (iii) other programs indicative of interests and abilities, such as club and intramural sports, sports programs at feeder schools, community and regional sports programs, and physical education classes, id.As the district court noted, however, the agency characterizes surveys as a simple way to identify which additional sports might appropriately be created to achieve compliance Thus, a survey of interests would follow a determination that an institution does not satisfy prong three; it would not be utilized to make that determination in the first instance. Cohen III, 879 F.Supp. The district court found that Brown predetermines the approximate number of varsity positions available to men and women, and, thus, that the concept of any measure of unfilled but available athletic slots does not comport with reality. Cohen III, 879 F.Supp. at n. 1. 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. 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. Contemporaneously, Brown demoted two men's teams, water polo and golf, from university-funded to donor-funded varsity status. Each prong of the Policy Interpretation's three-part test determines compliance in this manner. Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 118 Cong.Rec. The majority pays lip service to these concerns in the final pages of its long opinion, stating that we are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations. Majority Opinion at 185 (quoting Cohen II, 991 F.2d at 906), and [o]ur 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. Majority Opinion at 185. at 1961, are clearly important objectives. 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. denied, 518 U.S. 1033, 116 S.Ct. denied, 510 U.S. 1004, 114 S.Ct. 2097, 132 L.Ed.2d 158 (1995), however, courts applying intermediate scrutiny sometimes allowed benign gender classifications on the grounds that they were a reasonable means of compensating women as a class for past discrimination. Ronald D. Rotunda & John E. Novack, 3 Treatise on Constitutional Law 18.23, at 277; see Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. Prong three of the three-prong test states that, where an institution does not comply with prongs one or two, compliance will be assessed on the basis of. 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). at 29; Reply Br. 106.41(b)(1995) provides that an academic institution may operate 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. 34 C.F.R. I recognize the financial constraints Brown faces; however, its own priorities will necessarily determine the path to compliance it elects to take. Id. In criticizing another facet of Brown's plan, the district court pointed out that. The binding authority of Cohen II, therefore, is lessened by the fact that it was an appeal from a preliminary injunction. Cohen v. Brown University Appeal Court of Appeals for the First Circuit, Case No. During the 1990-91 academic year, Brown fielded 16 men's and 15 women's varsity teams on which 566 men and 328 women participated. of Bethlehem, Pa., 998 F.2d 168, 175 (1993) (observing that, although Title IX and its regulations apply equally to boys and girls, it would require blinders to ignore that the motivation for promulgation of the regulation on athletics was the historic emphasis on boys' athletic programs to the exclusion of girls' athletic programs in high schools as well as colleges), cert. 30,407 (1971) (same)). The Policy Interpretation states that its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulation. 44 Fed.Reg. 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. 2778, 2782-83, 81 L.Ed.2d 694 (1984). I conclude, therefore, that Adarand and Virginia are irreconcilable with the analysis in Cohen II and, accordingly, we must follow the guidance of the Supreme Court in this appeal. 20 U.S.C. Since Cohen II, however, Metro Broadcasting has been overruled, at least in part. at 8. 1028, 1038, 117 L.Ed.2d 208 (1992). 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. 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. Id. [W]hereas Title VII is largely peremptory, Title IX is largely aspirational, and thus, a loosely laced buskin. Id. See Clarification Memorandum at 2 (In determining participation opportunities, OCR counts the number of actual athletes participating in the athletic program.). at 2271, 2275; id. The Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports. (Cohen v. Brown University, (1st Cir. at ----, 116 S.Ct. The district court entered final judgment on September 1, 1995, and on September 27, 1995, denied Brown's motion for additional findings of fact and to amend the judgment. We have also recognized that this exception may apply in those rare situations where newly emergent authority, although not directly controlling, nevertheless offers a convincing reason for believing that the earlier panel, in light of the neoteric developments, would change its course. Id. 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. 978 (D.R.I. 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. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Injury is The regulations and agency documents discussed herein were originally promulgated by HEW, the administering agency at the time, and later adopted by the present administering agency, DED. Partially as a consequence of this, participation rates of women are far below those of men.). . . at 202. Cir.1994) (citing United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir. 706, 102 L.Ed.2d 854, Brown concludes that strict scrutiny applies to gender-based classifications.21 Appellant's Br. at 463 (statistics exhibit a variety of shortcomings that seriously impugn their value to equal protection analysis); id. 2097, 2111-12, 132 L.Ed.2d 158 (1995). V. Strong, of Raleigh, for defendant. 185 (D.R.I.1995) (Cohen III), to demonstrate the many ways in which a university might achieve compliance: 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. In 2018, the defendant established a . at 194, and applied the law in accordance with its mandate, id. at 902. 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. 1993) (hereinafter Moore). At the time of trial, Brown offered 479 university-funded varsity positions for men, as compared to 312 for women; and 76 donor-funded varsity positions for men, as compared to 30 for women. Majority Opinion at 185 (quoting Cohen III). No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. Cf. 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. In all other respects the judgment of the district court is affirmed. 106.41, and policy interpretation, 44 Fed.Reg. 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. At issue in this appeal is the proper interpretation of the first of these, the so-called three-part test,7 which inquires as follows: (1)Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or, (2)Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or. It is clearly in the best interest of both the male and the female athletes to have an increase in women's opportunities and a small decrease in men's opportunities, if necessary, rather than, as under Brown's plan, no increase in women's opportunities and a large decrease in men's opportunities. at 2112; see also Richmond v. J.A. What stimulated this remarkable change in the quality of women's athletic competition was not a sudden, anomalous upsurge in women's interest in sports, but the enforcement of Title IX's mandate of gender equity in sports. 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. at 980, and that, of the 894 undergraduate students competing on these teams, 63.3% (566) were men and 36.7% (328) were women, 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. While they point to Congress' decision to delegate authority to the relevant agencies, this does not amount to a genuine-that is, not hypothesized or invented in view of litigation, id. The controversy in this case began in April 1968, when Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" into a Los Angeles courthouse. The prior panel rejected Brown's Fifth Amendment equal protection20 and affirmative action challenges to the statutory scheme. Dees asked civil rights leader Julian Bond to serve as president, a largely honorary position; he resigned in 1979 but remained on the board . 26. We do not question Cohen II's application of 1681(b). Under the Policy Interpretation,Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided:a. 1364, 1370-71, 113 L.Ed.2d 411 (1991)). 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. 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. 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. Brown merely asserts, however, that the study was admissible under Rule 803, id. 1681-1688, provides that no 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. Id. Cohen v. Brown University, Court Case No. (c)Equal Opportunity. 2. 549 U.S 497 (2007) Brief Fact Summary. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. at 3008. at 1846-47. Appellees also argue that, to the extent that the equal protection claim is viable, Brown lacks standing to raise it. 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. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. Second, the district court is not under time constraints to consider a new plan and fashion a remedy so as to expedite appeal. Contact us. 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. 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. It does not follow from our statutory and constitutional analyses that we endorse the district court's remedial order. (citing Cox at 34, quoting N.Y.Times, June 27, 1975, at 16, col. 4). Even a single person with a reasonable unmet interest defeats compliance. Given our disposition of this claim, we do not address these arguments. See 1B James W. Moore et al., Moore's Federal Practice 0.404 [1] (2d ed. As with other anti-discrimination regimes, Title IX neither mandates a finding of discrimination based solely upon a gender-based statistical disparity, see Cohen II, 991 F.2d at 895, nor prohibits gender-conscious remedial measures. 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 190. 1287, 1288-89, 28 L.Ed.2d 582 (1971) (recognizing that measures required to remedy race discrimination will almost invariably require race-conscious classifications, and that [a]ny other approach would freeze the status quo that is the very target of all desegregation processes). at 189. However, although Congress could easily have done so, it did not ban affirmative action or gender-conscious remedies under Title IX. denied, 510 U.S. 1043, 114 S.Ct. 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. In our view, it is Brown's relative interests approach to the three-part test, rather than the district court's interpretation, that contravenes the language and purpose of the test and of the statute itself. 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. ECF No. As the Kelley Court pointed out (in the context of analyzing the deference due the relevant athletics regulation and the Policy Interpretation): Undoubtedly the agency responsible for enforcement of the statute could have required schools to sponsor a women's program for every men's program offered and vice versa It was not unreasonable, however, for the agency to reject this course of action. 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. Brown also contends that the district court erred in excluding the NCAA Annual Report. 44 Fed.Reg. In that case, Congress specifically found that more frequent and lower age limits were being applied to women than to men in the labor market. We note that Brown presses its relative interests argument under both prong one and prong three. The processes take into account the nationally increasing levels of women's interests and abilities;b. Accordingly, the district court excluded club varsity teams from the definition of intercollegiate teams and, therefore, from the calculation of participation opportunities, because the evidence was inadequate to show that the club teams regularly participated in varsity competition. 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. 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. The district court concluded that intercollegiate athletics opportunities means real opportunities, not illusory ones, and therefore should be measured by counting actual participants. Id. Thus, the analytical result would be same, even if this were an affirmative action case. 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. Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. District Court Order at 6 (footnote omitted). 1313, 1322, 59 L.Ed.2d 533 (1979). 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.)). In addition, the majority has put the power to control athletics and the provision of athletic resources in the hands of the underrepresented gender. 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. 2264, 135 L.Ed.2d 735 (1996) ( Virginia); see id. 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. Applying that test, it is clear that the district court's remedial order passes constitutional muster. Although the district court excluded as full exhibits two studies, the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, it nevertheless permitted Brown's experts to rely on the data contained in these two reports as a basis for their expert opinions.24 Because Brown's experts relied upon the excluded data in providing their opinions on the issue of a gender-based differential in student interest in athletics, the evidence was before the trier of fact and any error was, therefore, harmless. 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. 184, 116 L.Ed.2d 145 (1991)). 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. Additionally, section 1681(a), a provision enacted by Congress as part of Title IX itself, casts doubt on the district court's reading of prong three. 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. at 205-06, 99 S.Ct. I am less interested in the actual term quota than the legally cognizable characteristics that render a quota scheme impermissible. View Cohen v. Brown University. 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. With these precepts in mind, we first examine the compliance plan Brown submitted to the district court in response to its order. 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.). Application of the Policy Interpretation is not limited to intercollegiate athletics, however. 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. The fact of gender-conscious classification, even with equal enforcement with respect to both genders, requires the application of a higher level of scrutiny than rational basis review. the participation opportunities offered by an institution are measured by counting the actual participants on intercollegiate teams. In providing for gender-segregated teams, intercollegiate athletics programs necessarily allocate opportunities separately for male and female students, and, thus, any inquiry into a claim of gender discrimination must compare the athletics participation opportunities provided for men with those provided for women. 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. Co., 74 F.3d 317, 322 (1st Cir.1996) (internal quotations omitted); see also Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). at 2274. of Cal. 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. at 1771. I believe that we face such a situation in the instant case. at 3008. 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. at 1195-96. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 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. Citation. 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. Although the protections of the First Amendment cannot be used to justify discrimination, this court should not forget that it has a duty to protect a private institution's right to mould its own educational environment. 1535, 1557 (D.Ala.1995) (stating that courts must look behind the recitation of a benign purpose to ensure that sex-based classifications redress past discrimination). The instant case should be distinguished from Califano for two reasons. This policy is comparable to prong one of the three prong test and is, without a doubt, a quota. Under the doctrine of the law of the case, a decision on an issue of law made by the court at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation except in unusual circumstances. Even assuming that membership numbers in varsity sports is a reasonable proxy for participation opportunities-a view with which I do not concur-contact sports should be eliminated from the calculus. Subjects. Id. We also find that judicial enforcement of federal anti-discrimination statutes is at least an important governmental objective. 2097, 132 L.Ed.2d 158 (1995) (remanding for review under strict scrutiny a challenge to a federal statute establishing a government-wide goal for awarding to minority businesses not less than 5% of the total value of all prime contracts and subcontracts for each fiscal year); Metro Broadcasting v. FCC, 497 U.S. 547, 110 S.Ct. 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