District Court Order at 6 (footnote omitted). I am not persuaded by the majority's argument that the three-part test does not constitute a quota because it does not permit an agency or court to find a violation solely on the basis of prong one of the test; instead, an institution must also fail prongs two and three. 37%. 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. Plaintiff Description: 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 . The regulation, therefore, allows schools to operate single-sex teams in contact sports. We find no error in the district court's definition and calculation of the intercollegiate athletics participation opportunities afforded to Brown students, and no error in the court's finding of a 13.01% disparity between the percentage of women participating in intercollegiate varsity athletics at Brown and the percentage of women in Brown's undergraduate student body. Applying these principles, Cohen II held that the applicable regulation, 34 C.F.R. (original emphasis omitted). The Court has been especially critical of the use of statistical evidence offered to prove generalized, stereotypical notions about men and women. In considering plaintiffs' motion for a preliminary injunction in Cohen I, the district court (i) paid meticulous attention to the parties' prospects for success over the long haul; (ii) plainly visualized both the factual intricacies and legal complexities that characterize Title IX litigation; (iii) held a lengthy adversary hearing and reviewed voluminous written submissions; and (iv) correctly focused on the three-part accommodation test. Cohen II, 991 F.2d at 903. 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. at 2728-29 (construing 703(j) of Title VII, upon which 1681(b) of Title IX was based, and concluding that [t]he natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action).In addition, remedial action and voluntary affirmative action to overcome the effects of gender discrimination are permitted under the Title IX regulations, 34 C.F.R. 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. In short, Brown treats the three-part test for compliance as a one-part test for strict liability. 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. 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. The original Cohen case was settled in 1998 by Joint Agreement. At trial, Brown argued that, in order to succeed on prong one, plaintiffs bear the burden of proving that the percentage of women among varsity athletes is not substantially proportionate to the percentage of women among students interested in participating in varsity athletics. Cohen III, 879 F.Supp. 515, ----, ----, 116 S.Ct. 2. Accordingly, the Court has taken the position that voluntary affirmative action plans cannot be constitutionally justified absent a particularized factual predicate demonstrating the existence of identified discrimination, see Croson, 488 U.S. at 500-06, 109 S.Ct. 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. Cohen v. Brown University, 101 F.3d 155 (1st. 27. Majority Opinion at 179 n. 15. T.B., 511 U.S. 127, 136-37, 114 S.Ct. Athletics are part of that curriculum. at 2291 (Scalia, J. dissenting). Plaintiff should've reasonably been able to take care of himself. Id. 1192, 1194-95, 51 L.Ed.2d 360 (1977) (allowing women to compute certain social security benefits with a more favorable formula than could be used by men); Lewis v. Cowen, 435 U.S. 948, 98 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. Despite these statements, however, the majority in its opinion today, and the district court before it, have failed to give Brown University freedom to craft its own athletic program and to choose the priorities of that program. Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. The regulation at 34 C.F.R. 185, 214 (D.R.I.1995) ( Cohen III). The processes take into account the nationally increasing levels of women's interests and abilities;b. at 57, and offers no explanation as to how it was prejudiced by the exclusion. Second, Brown's plan artificially boosts women's varsity numbers by adding junior varsity positions on four women's teams. Id. 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. 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. 16. One need look no further than the impressive performances of our country's women athletes in the 1996 Olympic Summer Games to see that Title IX has had a dramatic and positive impact on the capabilities of our women athletes, particularly in team sports. The District Court's Interpretation and the Resulting Equal Protection Problem. 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). Not all sports are the same and the university should be given the flexibility to determine which activities are most beneficial to its student body. Since the applicable regulation, 34 C.F.R. at 1771. at ----, 116 S.Ct. The same could be said of any individual sport, including golf, track and field, cycling, fencing, archery, and so on. This appeal followed. 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. They heated the cellar accordingly but this raised the temperature on the floor above, which caused the plaintiff's stock of delicate brown paper to dry and diminish in value. 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. As the Seventh Circuit observed, Congress itself recognized that addressing discrimination in athletics presented a unique set of problems not raised in areas such as employment and academics. Kelley, 35 F.3d at 270 (citing Sex Discrimination Regulations, Hearings Before the Subcommittee on Post Secondary Education of the Committee on Education and Labor, 94th Cong., 1st Sess. Home. 106.41(c)(1) (1995), regardless of its performance with respect to other Title IX areas. 1992). We do, however, find error in the district court's award of specific relief and therefore remand the case to the district court for reconsideration of the remedy in light of this opinion. Ryan v. Royal Ins. The district court found Brown's plan to be fatally flawed for two reasons. The Court also requires a focus on whether the proffered justification is exceedingly persuasive. Id. Second, Califano, unlike the instant case, contained an exceedingly persuasive justification for its gender-conscious state action. V. Strong, of Raleigh, for defendant. No tags have been applied so far. In any event, the three-part test is, on its face, entirely consistent with 1681(b) because the test does not require preferential or disparate treatment for either gender. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Cohen v. Brown University. We emphasize two points at the outset. 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. The prior panel, like Brown, assumed without analysis that 1681(b) applies unequivocally to intercollegiate athletics programs. In concluding that the district court's interpretation and application of the three-part test creates a quota, Brown errs, in part, because it fails to recognize that (i) the substantial proportionality test of prong one is only the starting point, and not the conclusion, of the analysis; and (ii) prong three is not implicated unless a gender-based disparity with respect to athletics participation opportunities has been shown to exist. at 1848, on the basis of facts insufficient to support a prima facie case of a constitutional or statutory violation, Croson, 488 U.S. at 500, 109 S.Ct. ; see also United States v. Reveron Martinez, 836 F.2d 684, 687 n. 2 (1st Cir.1988) (To be sure, there may be occasions when courts can-and should-loosen the iron grip of stare decisis. 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 also fails to recognize that Title IX's remedial focus is, quite properly, not on the overrepresented gender, but on the underrepresented gender; in this case, women. Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 106.37(c) and 106.41(c)]. 44 Fed.Reg. A diverse judiciary is vital to maintaining the public's confidence in the courts. 1992). Congress enacted Title IX in response to its finding-after extensive hearings held in 1970 by the House Special Subcommittee on Education-of pervasive discrimination against women with respect to educational opportunities. Nor did Brown satisfy prong two. 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. Contemporaneously, Brown demoted two men's teams, water polo and golf, from university-funded to donor-funded varsity status. Accordingly, we have held that only a few exceptional circumstances can overcome the interests served by adherence to the doctrine and these exceptions are narrowly circumscribed. at 320, 97 S.Ct. 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. 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. 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. 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 214. 2003) on CaseMine. at 24, and that the law of the case doctrine does not prevent a court from changing its mind, id. 3. As previously noted, the district court held that, for purposes of the three-part test, the intercollegiate athletics participation opportunities offered by an institution are properly measured by counting the number of actual participants on intercollegiate teams. Thus, the legislative history strongly suggests that the underscored language defines what is proscribed (in the contexts of admissions and hiring) in terms of a geographical area, beyond the institution, and does not refer to an imbalance within the university, with respect to the representation of each gender in intercollegiate athletics, as compared to the gender makeup of the student body. at 197-99; accord Kelley, 35 F.3d at 272 (holding that neither the regulation nor the policy interpretation run afoul of the dictates of Title IX). We emphasize that, on the facts of this case, Brown's lack-of-interest arguments are of no consequence. It does not follow from our statutory and constitutional analyses that we endorse the district court's remedial order. Brown v. Board of Education, 347 U.S. 483 (1954) - Amicus curiae for Oliver Brown; . 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. While we acknowledge that the law of the case doctrine is subject to exceptions, we conclude that none applies here, and that the decision rendered by the prior panel in the first appeal is not, as Brown claims, legally defective. Accordingly, we decline Brown's invitation to undertake plenary review of issues decided in the previous appeal and treat Cohen II as controlling authority, dispositive of the core issues raised here. 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. In other words. at 899 (citations omitted). View Cohen v. Brown University. A viable tennis team may require only a single player. (quoting Regents of Univ. In 2018, the defendant established a . 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. 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. Contact us. Filed: 1993-04-16 Precedential Status: Precedential Citations: 991 F.2d 888 Docket: 92-2483 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. 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. 1419, ---------, 128 L.Ed.2d 89 (1994). at 64-66, 71-73, 112 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. First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. [T]he Court proceeds to interpret exceedingly persuasive justification in a fashion that contradicts the reasoning of Hogan and our other precedents. Id. 611(b); see Ferragamo v. Chubb Life Ins. 515, ---------, 116 S.Ct. THE PLAINTIFF CLASS. Copyright 2023, Thomson Reuters. 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. 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). 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. 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. of Cal. 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. We held that the district court erred in placing upon Brown the burden of proof under prong three of the three-part test used to determine whether an intercollegiate athletics program complies with Title IX, discussed infra. While the Supreme Court in Virginia acknowledged that [p]hysical differences between men and women are enduring, id. 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. Irving, 49 F.3d at 834. 71,413-71,423 (1979). We also find that judicial enforcement of federal anti-discrimination statutes is at least an important governmental objective. at 189. While this case presents only the example of members of the underrepresented gender seeking the opportunity to participate on single-sex teams, the same analysis would apply where members of the underrepresented gender sought opportunities to play on co-ed teams. In addition, the concept of preference does not have the same meaning, or raise the same equality concerns, as it does in the employment and admissions contexts. These conclusory assertions do not comport with the law in this circuit. Brown argues that the district court erred in concluding that it was obligated to give substantial deference to the Policy Interpretation, on the ground that the interpretation is not a worthy candidate for deference, Reply Br. denied, 516 U.S. 1159, 116 S.Ct. 1681(b). 1192, 1194-95, 51 L.Ed.2d 360 (1977); Frontiero v. Richardson, 411 U.S. 677, 684-86, 93 S.Ct. 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. 1572, 55 L.Ed.2d 797 (1978) (summary affirmance of a district court decision upholding a provision of the Railroad Retirement Act that allowed women to retire at age 60 while men could not retire until age 65). 23. at 2294 (citations omitted). denied, 513 U.S. 1025, 115 S.Ct. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. I agree with Brown that, in the context of OCR's Policy Interpretation, prong three is susceptible to at least these two plausible interpretations. 7261(a)(1). at 214; see also Cohen II, 991 F.2d at 898 n. 15 (noting that a school may achieve compliance with Title IX by reducing opportunities for the overrepresented gender). Nevertheless, Brown asserts that [w]hile Adarand is a case involving racial classification, its analysis clearly applies to gender classification as well. Id. 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. Prong one, for example, requires that participation opportunities be provided proportionately to enrollment, but does not mandate any absolute number of such opportunities. at II-2. Adarand overruled Metro Broadcasting to the extent that Metro Broadcasting is inconsistent with Adarand's holding that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. Adarand, 515U.S. Id. 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. Why we love our games, U.S. News & World Report, July 15, 1996, at 33-34 (attributing to Title IX the explosive growth of women's participation in sports and the debunking of the traditional myth that women aren't interested in sports). See Cohen III, 879 F.Supp. 2305, 2310-11, 81 L.Ed.2d 164 (1984)).9. Even under the individual rights theory of equal protection, reaffirmed in Adarand, 515 U.S. at ----, 115 S.Ct. of Agric., 998 F.2d 824 (10th Cir. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.44 Fed.Reg. Brown concedes that Adarand does not, in partially overruling Metro Broadcasting, set forth the proper standard of review for this case. Appellant's Br. The Metro Broadcasting Court distinguished Croson, noting that [i]n fact, much of the language and reasoning in Croson reaffirmed the lesson of Fullilove18 that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments. Metro Broadcasting, 497 U.S. at 565, 110 S.Ct. Accordingly, we remand the case to the district court so that Brown can submit a further plan for its consideration. Due to a planned power outage on Friday, 1/14, between 8am-1pm PST, some services may be impacted. Id. 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. The district court's conclusion with respect to prong two, however, implies that a school must not only demonstrate that the proportion of women in their program is growing over time, it must also show that the absolute number of women participating is increasing.26. of the Commonwealth Sys. 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. We also point out that Adarand did not reach the question of the sufficiency of the factual predicate required to satisfy strict scrutiny review of a congressionally mandated race-based classification. 398. In Cohen v. Brown University, plaintiff Amy Cohen challenges the elimination of women's gymnastics and volleyball teams. at 1193-94. Title IX and its implementing regulations protect the class for whose special benefit the statute was enacted. Because I am not persuaded that the majority's view represents the state of the law today, I respectfully dissent. 1731, 1736-37, 14 L.Ed.2d 601 (1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12 (1st Cir.1991), rev'd on other grounds, 506 U.S. 139, 113 S.Ct. at ----, 116 S.Ct. All rights reserved. 2097, 132 L.Ed.2d 158 (1995) ( Adarand), controls this case necessarily presumes that Adarand constitutes a contrary intervening decision by controlling authority on point that (i) undermines the validity of Cohen II; (ii) compels us to depart from the law of the case doctrine; and (iii) therefore mandates that we reexamine Brown's equal protection claim. 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