at 565, 110 S.Ct. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. E.g., A.M. Capen's Co. v. American Trading and Prod. 14. at 71,413. 1028, 1038, 117 L.Ed.2d 208 (1992). This approach is entirely contrary to Congress's unmistakably clear mandate that educational institutions not use federal monies to perpetuate gender-based discrimination, id. at 3-4. Thus, Brown will fully comply with Title IX by meeting the standards of prong three, without approaching satisfaction of the standards of prong one. By Arthur Bryant and Lori Bullock* Cohen v. Brown University, which the First Circuit just referred to as "This landmark Title IX case," started in April 1992, after the school stopped funding its varsity women's gymnastics and volleyball teams.Eleven female athletes, including Amy Cohen, Megan Hull, Lisa Stern Kaplowitz, Eileen Rocchio, and Jennifer Todd, fought back. at 2294 (citations omitted). 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. denied, 516 U.S. 1159, 116 S.Ct. We do not question Cohen II's application of 1681(b). We conclude that the district court's application of the three-part test does not create a gender-based quota and is consistent with Title IX, 34 C.F.R. 28. 2264, 2274-76, 135 L.Ed.2d 735 (1996) (applying Equal Protection review to gender-based government action where Commonwealth of Virginia attempted to maintain two purportedly equal single-sex institutions). . 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. The problem with the majority's argument can be illustrated with a hypothetical college admissions policy that would require proportionality between the gender ratio of the local student aged population and that of admitted students. 578, 584 (W.D.Pa. In fact, appellees have failed to point to any congressional statement or indication of intent regarding a proportional representation scheme as applied by the district court. The individual defendants are, respectively, the President and Athletic Director of the University. Request Update Get E-Mail Alerts : Text: Citations (268) Cited By (1) UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. Croson Co., 488 U.S. 469, 493, 109 S.Ct. While it is difficult to point to one particular case and hold it up as the definitive . The majority is unsympathetic to Brown's claim that the disparity between athletic opportunities for men and women reflect a gender-based difference in interest levels. 106.41, the Policy Interpretation, and the mandate of Cohen II. (1971), reprinted in 1972 U.S.C.C.A.N. As previously noted, Title IX itself specifies only that the statute shall not be interpreted to require gender-based preferential or disparate treatment. Accordingly, I would reverse and remand for further proceedings. 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. Comm'n, 463 U.S. 582, 103 S.Ct. This difficulty was recognized in Cohen II, which stated that the mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team in order to comply with the third benchmark. Cohen II 991 F.2d at 898. The panel explained that, while evidence of a gender-based disparity in an institution's athletics program is relevant to a determination of noncompliance, a court assessing Title IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution's student constituency, on the one hand, and its athletic programs, on the other hand. Id. 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. at 204 (internal quotation marks and citations omitted). We then consider the district court's order rejecting Brown's plan and the specific relief ordered by the court in its place. Each prong of the Policy Interpretation's three-part test determines compliance in this manner. at 56 (citing Powers v. Ohio, 499 U.S. 400, 409-11, 111 S.Ct. 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. 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. Due to a planned power outage on Friday, 1/14, between 8am-1pm PST, some services may be impacted. The school argues women are less interested in sports than men. 2. 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. Id. at ----, 116 S.Ct. - 991 F.2d 888 (1st Cir. 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. at 71,418, in which case the compliance inquiry ends without reaching prong three. We acknowledge that we have repeatedly emphasized that conclusions and holdings regarding the merits of issues presented on appeal from a grant of a preliminary injunction are to be understood as statements as to probable outcomes. View Cohen v. Brown University. denied, 502 U.S. 862, 112 S.Ct. The panel also noted that, in spite of the scant legislative history regarding Title IX as it applies to athletics, Congress heard a great deal of testimony regarding discrimination against women in higher education and acted to reverse the Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555, 573-74, 104 S.Ct. Applying these principles, Cohen II held that the applicable regulation, 34 C.F.R. 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. 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. at ----, 116 S.Ct. 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. (b)Separate teams. 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. Brown simply ignores the fact that it is required to accommodate fully the interests and abilities of the underrepresented gender, not because the three-part test mandates preferential treatment for women ab initio, but because Brown has been found (under prong one) to have allocated its athletics participation opportunities so as to create a significant gender-based disparity with respect to these opportunities, and has failed (under prong two) to show a history and continuing practice of expansion of opportunities for the underrepresented gender. denied sub nom. See Williams v. School Dist. at 71,416. As the Supreme Court has explained, [b]ecause applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers. Martin, 499 U.S. at 151, 111 S.Ct. A school is not required to sponsor an athletic program of any particular size. 1195, 1199, 67 L.Ed.2d 428 (1981); Hogan, 458 U.S. at 724, 102 S.Ct. 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. In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. 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. denied, 513 U.S. 1025, 115 S.Ct. The district court subsequently issued a modified order, requiring Brown to submit a compliance plan within 60 days. 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. Research the case of Cohen v. Brown University, from the First Circuit, 01-16-1996. The Bond InjunctionSchooner Lost. Id. Despite the fact that it presents substantially the same legal arguments in this appeal as were raised and decided in the prior appeal, Brown asserts that there is no impediment to this court's plenary review of these decided issues. 1910, 1914, 100 L.Ed.2d 465 (1988); see also Mississippi Univ. Finally, the tremendous growth in women's participation in sports since Title IX was enacted disproves Brown's argument that women are less interested in sports for reasons unrelated to lack of opportunity. 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. 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. In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. 531, 536 n. 9 (1981) (citing Thomas A. Cox, Intercollegiate Athletics and Title IX, 46 Geo.Wash.L.Rev. The district court's narrow, literal interpretation should be rejected because prong three cannot be read in isolation. We also find that judicial enforcement of federal anti-discrimination statutes is at least an important governmental objective. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. Establishing that a school is moving inexorably closer to satisfying a requirement that demands statistical balancing can only be done by demonstrating an improvement in the statistical balance. In other words, the second prong also requires balancing. We disagree. 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. 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. T.B., 511 U.S. 127, 136-37, 114 S.Ct. 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. at 541). 65, 74 L.Ed.2d 66 (1982). at 6. We must, as Brown urges, reexamine the Equal Protection challenge to the three-prong test as interpreted by the district court. This standard, in fact, goes farther than the straightforward quota test of prong one. See Cannon, 441 U.S. at 694, 99 S.Ct. Since Cohen II, however, Metro Broadcasting has been overruled, at least in part. 978, 1001 (D.R.I.1992) ("Cohen I "). 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. [24] This provision governs the distribution of athletic scholarships under the general caption of financial assistance in education programs. In Cohen I, 991 F.2d 888, the "watershed" case involving Title IX and university athletics, Brown University appealed from the district court's issuance of a preliminary injunction ordering Brown to reinstate its women's gymnastics and volleyball programs, pending the resolution of the plaintiffs' claim that the proposed cutbacks violated Title IX. 1364, 1370-71, 113 L.Ed.2d 411 (1991)). I am less interested in the actual term quota than the legally cognizable characteristics that render a quota scheme impermissible. 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. 2297, 2303, 124 L.Ed.2d 586 (1993)). at 1001, will remain in effect pending a final remedial order. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) ("Cohen II "). 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. In Cohen II, we applied precisely this type of benign-classification analysis to what we viewed to be benign gender discrimination by the federal government. Brown's rehashed statutory challenge is foreclosed by the law of the case doctrine and we are therefore bound by the prior panel's interpretation of the statute, the regulation, and the relevant agency pronouncements. 2475, 2491, 132 L.Ed.2d 762 (1995) (compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws) (citing Shaw v. Reno, 509 U.S. 630, 653-54, 113 S.Ct. 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. It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. Contemporaneously, Brown demoted two men's teams, water polo and golf, from university-funded to donor-funded varsity status. 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. See Missouri v. Jenkins, 515 U.S. 70, ----, 115 S.Ct. 2038, 2048, 132 L.Ed.2d 63 (1995) (acknowledging the constitutional permissibility of court-ordered, race-conscious remedial plans designed to restore victims of discrimination to the positions they would have occupied in the absence of such conduct); Fullilove, 448 U.S. at 483, 100 S.Ct. 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. 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. 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. 2778, 2782-83, 81 L.Ed.2d 694 (1984). 2. . If so, the inquiry ends and Brown should be judged to be in compliance. 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. While affirmative action may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. Cohen II, 991 F.2d at 901. If the athletes competing in sports for which the university is permitted to field single-sex teams are excluded from the calculation of participation rates, the proportion of women participants would increase dramatically and prong one might be satisfied. at 1917-18 (directing that Title IX must be accorded a sweep as broad as its language). 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. at 204, 97 S.Ct. 515, ----, ----, 116 S.Ct. As was also the case under strict scrutiny review prior to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. Ryan v. Royal Ins. Brown operates a two-tiered intercollegiate athletics program with respect to funding: although Brown provides the financial resources required to maintain its university-funded varsity teams, donor-funded varsity athletes must themselves raise the funds necessary to support their teams through private donations. 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. ), aff'd, 7 F.3d 332 (3d Cir.1993). Hopwood v. Texas, 78 F.3d 932, 943-46 (5th Cir.) 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. 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). In November 1996, we won a ruling in federal court that Brown University violated Title IX when it demoted its women's gymnastics and volleyball teams from university-funded to donor-funded varsity status. This is a curious result because the entire three-prong test is based on relative participation rates. 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. Plaintiff: Amy Cohen and other members of the gymnastics team as well as member of the women's volleyball team. We think it important to bear in mind, however, the congressional concerns that inform the proper interpretation of this provision. Id. See Miller, 515 U.S. at ----, 115 S.Ct. JOINT STATEMENT ISSUED BY THE PARTIES IN COHEN V. BROWN UNIVERSITY. To assert that Title IX permits institutions to provide fewer athletics participation opportunities for women than for men, based upon the premise that women are less interested in sports than are men, is (among other things) to ignore the fact that Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women's interests and abilities. 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. As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. 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. That prong merely recognizes that a school may not be able to meet the quotas of the first or third prong immediately, and therefore deems it sufficient to show program expansion that is responsive to the interests of the underrepresented sex. a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . The panel then carefully delineated the burden of proof, which requires a Title IX plaintiff to show, not only disparity between the gender composition of the institution's student body and its athletic program, thereby proving that there is an underrepresented gender, id. Corp., 74 F.3d 317, 322 (1st Cir.1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). I see no possible justification for this interpretation-the regulation is intended to protect against discrimination, not to promote athletics on college campuses. 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. 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. When a team is sponsored only for one sex, however, and where 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. These conclusory assertions do not comport with the law in this circuit. 611(b); see Ferragamo v. Chubb Life Ins. Copyright 2023, Thomson Reuters. 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. 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.). the participation opportunities offered by an institution are measured by counting the actual participants on intercollegiate teams. Thus, we have not construed the doctrine as an inflexible straitjacket that invariably requires rigid compliance. Northeast Utils. at n. 1. It is well settled that the reach of the equal protection guarantee of the Fifth Amendment Due Process Clause-the basis for Brown's equal protection claim-is coextensive with that of the Fourteenth Amendment Equal Protection Clause. at ----, 116 S.Ct. Cohen II cited Metro Broadcasting for a general principle regarding Congress's broad powers to remedy discrimination, a proposition that was not reached by Adarand. Amy Cohen (plaintiff), a member of the . If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test. Id. . 1764, 36 L.Ed.2d 583, and Croson, 488 U.S. 469, 109 S.Ct. 92-2483 To the extent that Brown assumes that Croson governs the issue of the sufficiency of the factual predicate required to uphold a federally mandated, benign race- or gender-based classification, that assumption is also unfounded. 44 Fed.Reg. Brown argues that the district court's interpretation of the three-part test requires numerical proportionality, thus imposing a gender-based quota scheme in contravention of the statute. The University has agreed to pay over $1.13 million in attorney's fees and $40,000 in litigation costs to the plaintiffs of Cohen v. Brown University following a Tuesday order by U.S. District Court Chief Judge John McConnell, according to court documents from the U.S. District Court for the District of Rhode Island. Title IX is an anti-discrimination statute, modeled after Title VI of the Civil Rights Act of 1964, 42 U.S.C. 1910, 1914, 100 L.Ed.2d 465 (1988), the Supreme Court applied a more searching skeptical scrutiny of official action denying rights or opportunities based on sex, id., at ----, 116 S.Ct. Rather, the Seventh Circuit endorsed the test as one for compliance, in dismissing the plaintiff's claims. at 194-95 n. 23. Pub.L. Stay up-to-date with how the law affects your life. It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. ), cert. Sponsor: C-SPAN,National Constitution Center Topics: brown, plessy, louisiana, ferguson, new orleans, massachusetts, etc., washington, kentucky,. The plaintiff . U.S. District Court Senior . at 906-07. See Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny . Serv. at 188. See Horner v. Kentucky High Sch. v. Bakke, 438 U.S. 265, 98 S.Ct. It can hardly be assumed that the Court intended to include gender-based classifications within Adarand's precedential scope or to elevate, sub silentio, the level of scrutiny to be applied by a reviewing court to such classifications. Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. Fourth, it is important to recognize that controlling authority does not distinguish between invidious and benign discrimination in the context of gender-based classifications, as it has in the context of racial classifications. See Adarand, 515 U.S. 200, 115 S.Ct. See 1B James W. Moore et al., Moore's Federal Practice 0.404 [1] (2d ed. And if compliance with Title IX is to be measured through this sort of analysis, it is only practical that schools be given some clear way to establish that they have satisfied the requirements of the statute. We reject Brown's kitchen-sink characterization of the Policy Interpretation and its challenge to the substantial deference accorded that document by the district court. 978 (D.R.I. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. Brown's interpretation of full and effective accommodation is simply not the law. Cohen III, 879 F.Supp. Thus, Brown contends, to meet fully-in an absolute sense-the interests and abilities of an underrepresented gender, while unmet interest among the overrepresented gender continues, would contravene the governing principle of equally effective accommodat[ion] of the interests and abilities of students of both genders. (emphasis added). (1993) - Free download as PDF File (.pdf) or read online for free. Cohen v. Brown University. 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. See Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st Cir.1993); EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir.1986). Id. 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. Id. 3019, 92 L.Ed.2d 344 (1986) (upholding a federal district court's imposition on the union a goal for racial minority membership as a remedy for the union's contempt of the court's earlier orders to cease racially discriminatory admissions practices). At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Second, Califano, unlike the instant case, contained an exceedingly persuasive justification for its gender-conscious state action. Here, gender-conscious relief was ordered by an Article III court, constitutionally compelled to have before it litigants with standing to raise the cause of action alleged; for the purpose of providing relief upon a duly adjudicated determination that specific defendants had discriminated against a certified class of women in violation of a federal anti-discrimination statute; based upon findings of fact that were subject to the Federal Rules of Evidence.
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