See Hogan, 458 U.S. at 728, 102 S.Ct. The school argues women are less interested in sports than men. at 71,417.The 1990 version of the Title IX Athletics Investigator's Manual, an internal agency document, instructs investigating officials to consider, inter alia, the following: (i) any institutional surveys or assessments of students' athletics interests and abilities, see Valerie M. Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator's Manual at 22 (1990); (ii) the expressed interests of the underrepresented gender, id. at 2274, for this particular quota scheme. Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. The unprecedented success of these athletes is due, in no small measure, to Title IX's beneficent effects on women's sports, as the athletes themselves have acknowledged time and again. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. at 210-13. Brown loses and is required to restore the programs. Specifically, with respect to Title IX's guarantee that no person shall be excluded on the basis of sex 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. All rights reserved. 1681(b) as a categorical proscription against consideration of gender parity. at ----, 116 S.Ct. In addition, a gender-conscious remedial scheme is constitutionally permissible if it directly protects the interests of the disproportionately burdened gender. 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. In Marengi v. 6 Forest Road LLC, 491 Mass. 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 1193-94. . A central issue in this case is the manner in which athletic participation opportunities are counted. Subjects. The majority offers no guidance to a school seeking to assess the levels of interest of its students. Applying 1681(b), the prior panel held that Title IX does not mandate strict numerical equality between the gender balance of a college's athletic program and the gender balance of its student body. Cohen II, 991 F.2d at 894. Partially as a consequence of this, participation rates of women are far below those of men.). Id. 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. 2721, 61 L.Ed.2d 480 (1979) (upholding a collective bargaining agreement that set aside for blacks half the places in a new training program until the percentage of blacks among skilled workers at the plant was commensurate with the percentage of blacks in the local labor force); Regents of the Univ. 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). Co., 41 F.3d at 770 (citing 1B Moore at 0.404[10]). Cohen III, 879 F.Supp. 2003) on CaseMine. at 3-4. I leave it entirely to Brown's discretion to decide how it will balance its program to provide equal opportunities for its men and women athletes. 8. ; 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. Thus, we recite the facts as supportably found by the district court in the course of the bench trial on the merits in a somewhat abbreviated fashion. 27. Third, even if Adarand did apply, it does not dictate the level of scrutiny to be applied in this case, as Brown concedes. See H.R.Rep. 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. App. In my view it is the result of the test, and not the number of steps involved, that should determine if a quota system exists. 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). Cohen III, 879 F.Supp. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. 4. 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. Filed: 1993-04-16 Precedential Status: Precedential Citations: 991 F.2d 888 Docket: 92-2483 See Adarand, 515 U.S. at ----, 115 S.Ct. at 320, 97 S.Ct. Brown also suggests that the district court's exclusion of statistical and survey data offered in support of its relative interests argument constitutes error. at n. 47. 1993) Rule: A district court, faced with a motion for preliminary injunction, must assess the request in four particular ways, evaluating: (1) the movant's probability of victory on the merits; (2) the potential for irreparable harm if the injunction is refused; (3) the balance of interests as between the parties, i.e . at 194. at 71,416. For simplicity, we treat DED as the promulgating agency. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). 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. He was elected in 2014 as a Judge of the Civil Court, NY County, and has also served, by designation . 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. (internal quotation marks and citation omitted). 1993) (hereinafter Moore). On January 16, 1996, DED released a Clarification Memorandum, which does not change the existing standards for compliance, but which does provide further information and guidelines for assessing compliance under the three-part test. This is a class action lawsuit charging Brown University, its President, and its Athletic Director (collectively "defendants" or "Brown") with discriminating against women in the operation of its intercollegiate athletic program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 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. . - 101 F.3d 155 (1st Cir. at 3336 & n. 9 (reviewing benign gender-conscious admissions policy under intermediate scrutiny and recognizing that the analysis does not change with the objective of the classification); accord Wygant, 476 U.S. at 273, 106 S.Ct. We think it important to bear in mind, however, the congressional concerns that inform the proper interpretation of this provision. at 2275 (internal quotations omitted) (emphasis added). Brown's interpretation of full and effective accommodation is simply not the law. Cohen III, 879 F.Supp. at 902 (citing 44 Fed.Reg. 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). 1912, 1919 n. 13, 72 L.Ed.2d 299 (1982). U.S. District Court Chief Judge John McConnell, Jr. approved a stipulated order today in Cohen v.Brown University, the landmark Title IX case, requiring Brown University to pay $1,135,000 for the attorneys' fees and $40,000 for the litigation expenses incurred by the class of women student-athletes who challenged the school's elimination of women's teams from its varsity intercollegiate . . (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. Brown's argument that the Supreme Court's recent decision in Adarand Constr., Inc. v. Pena, 515 U.S. 200, 115 S.Ct. Id. Among the evidence submitted by Brown are: (i) admissions data showing greater athletic interest among male applicants than female applicants; (ii) college board data showing greater athletic interest and prior participation rates by prospective male applicants than female applicants; (iii) data from the Cooperative Institutional Research Program at UCLA indicating greater athletic interest among men than women; (iv) an independent telephone survey of 500 randomly selected Brown undergraduates that reveals that Brown offers women participation opportunities in excess of their representation in the pool of interested, qualified students; (v) intramural and club participation rates that demonstrate higher participation rates among men than women; (vi) walk-on and try-out numbers that reflect a greater interest among men than women; (vii) high school participation rates that show a much lower rate of participation among females than among males; (viii) the NCAA Gender Equity Committee data showing that women across the country participate in athletics at a lower rate than men. Id. First, the substantive issues have been decided adversely to Brown. 1. 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. For clarification, we note that the cases refer to each part of this three-part test as a prong or a benchmark. Prong one is also called the substantial proportionality test.. at 12. 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. Instead, this approach freezes that disparity by law, thereby disadvantaging further the underrepresented gender. at 1771. In 2018, the defendant established a . at 2777 (recognizing that the authority of a federal court to incorporate racial criteria into a remedial decree also extends to statutory violations and that, where federal anti-discrimination laws have been violated, race-conscious remedies may be appropriate); Weber, 443 U.S. at 197, 99 S.Ct. Villanueva v. Wellesley College, 930 F.2d 124, 129 (1st Cir.1991) (citations omitted). Brown's proposed compliance plan stated its goal as follows: The plan has one goal: to make the gender ratio among University-funded teams at Brown substantially proportionate to the gender ratio of the undergraduate student body. 2264, 2274, 2277, 135 L.Ed.2d 735 (1996) (viewing Virginia's benign justification for a gender classification skeptically); Shuford v. Alabama State Bd. It is also well established that an agency's construction of its own regulations is entitled to substantial deference. Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1681(a) (1988). Stay up-to-date with how the law affects your life. 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. 7. It is imperative to recognize that athletics presents a distinctly different situation from admissions and employment and requires a different analysis in order to determine the existence vel non of discrimination. 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. Because the standard has changed, it is conceivable that the result of the analysis will change, making review appropriate. A diverse judiciary is vital to maintaining the public's confidence in the courts. We emphasize two points at the outset. 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. Cohen II, 991 F.2d at 901. Since Cohen II, however, Metro Broadcasting has been overruled, at least in part. As previously noted, Cohen II expressly held that 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. 991 F.2d at 895. This standard, in fact, goes farther than the straightforward quota test of prong one. Id. Measuring compliance through an evaluation of a school's allocation of its athletic resources allows schools flexibility in meeting the athletic interests of their students and increases the chance that the actual interests of those students will be met. In computing these figures, the district court counted as participants in intercollegiate athletics for purposes of Title IX analysis those athletes who were members of varsity teams for the majority of the last complete season. After all, the district court itself stated that one of the compliance options available to Brown under Title IX is to demote or eliminate the requisite number of men's positions. Cohen III, 879 F.Supp. 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. to participate in their sports as "intercollegiate clubs," but would not receive financial assistance from the university. 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). As to prong three, the district court found that Brown had not fully and effectively accommodated the interest and ability of the underrepresented sex to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes. Id. 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. 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 district court's decision to fashion specific relief was made, in part, to avoid protracted litigation over the compliance plan and to expedite the appeal on the issue of liability. of Pa., 7 F.3d 332 (3d Cir.1993); Roberts v. Colorado State Bd. at 202, 97 S.Ct. at 469, 109 S.Ct. See 34 C.F.R. Id. 1764, 36 L.Ed.2d 583, and Croson, 488 U.S. 469, 109 S.Ct. at 725, to the benefit of unidentified victims of past discrimination, see id. 1992). 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. There is simply no other way to assess participation rates, interest levels, and abilities. of Educ., 897 F.Supp. Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI. Further, inappropriately relying on Frontiero, 411 U.S. 677, 93 S.Ct. Under the Policy Interpretation,Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided:a. 1996) Rule: Title IX of the Education Code, 20 U.S.C.S. We must, as Brown urges, reexamine the Equal Protection challenge to the three-prong test as interpreted by the district court. at 71,418). 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). at 1195-96. According to the district court, Brown's athletics program violates prong three because members of the proportionately underrepresented sex have demonstrated interest sufficient for a university-funded varsity team that is not in fact being funded. In addition, a majority of the Court in Guardians Ass'n v. Civil Serv. 20 U.S.C.A. The district court concluded that intercollegiate athletics opportunities means real opportunities, not illusory ones, and therefore should be measured by counting actual participants. Id. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. 549 U.S 497 (2007) Brief Fact Summary. 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. If statistical evidence of interest levels is not to be considered by courts, however, there is no way for schools to determine whether they are in compliance. To read fully in an absolute sense would make the third prong virtually impossible to satisfy and, therefore, an irrelevant addition to the test. at 896-97; and that, [b]ecause the agency's rendition stands upon a plausible, if not inevitable, reading of Title IX, we are obligated to enforce the regulation according to its tenor, id. 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. Specifically, Brown argues that the district court's interpretation and application of the test is irreconcilable with the statute, the regulation, and the agency's interpretation of the law, and effectively renders Title IX an affirmative action statute that mandates preferential treatment for women by imposing quotas in excess of women's relative interests and abilities in athletics. The concern informing this caveat arises when we are asked to rule on the propriety of a district court's grant of a preliminary injunction (or otherwise issue a preliminary ruling) without benefit of full argument and a well-developed record. The law of the case doctrine is akin to the doctrines of collateral estoppel, res judicata, and stare decisis, Joan Steinman, Law Of The Case: A Judicial Puzzle In Consolidated And Transferred Cases And In MultiDistrict Litigation, 135 U.Penn.L.Rev. By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. at 205. District Court Order at 6 (footnote omitted). Nevertheless, Brown asserts that [w]hile Adarand is a case involving racial classification, its analysis clearly applies to gender classification as well. Id. 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. Cohen II squarely rejected Brown's interpretation of the three-part test and carefully delineated its own, which is now the law of this circuit as well as the law of this case. See Cohen v. Brown Univ., 16 F.4th 935, 940-41 (1st Cir. at 5. We disagree. Prong one, for example, requires that participation opportunities be provided proportionately to enrollment, but does not mandate any absolute number of such opportunities. at 190. The Seventh Circuit did not consider the question of whether, had the defendant University of Illinois not been in compliance, lack of compliance with the three-prong test alone would trigger automatic liability, nor did the Seventh Circuit spell out what steps would have been required of defendant. 1681(b). 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. 5804 (1972) (remarks of Sen. Bayh); North Haven Bd. 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. 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. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. at 993. at 24, and that the law of the case doctrine does not prevent a court from changing its mind, id. 22. 15 women's athletic teams (328) 16 men's teams (63%, 566) What Brown did to handle with the problem that there were many athletes. 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. 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. The right to injunctive relief under Title IX appears to have been impliedly accepted by the Supreme Court in Franklin. 2581, 135 L.Ed.2d 1095 (1996).27, The majority claims that neither the Policy Interpretation nor the district court's interpretation of it, mandates statistical balancing. Majority Opinion at 175. denied, 507 U.S. 1030, 113 S.Ct. 13. Brown merely asserts, however, that the study was admissible under Rule 803, id. of Educ., 476 U.S. 267, 106 S.Ct. No. 2021), cert. It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. As a result, I opt for Brown's construction of prong three, which, as we have discussed, infra, is also a reasonable reading. The relevant facts, legal principles, and procedural history of this case have been set forth in exhaustive detail in the previous opinions issued in this case. at 981. [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [we] construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. Junior varsity squads, by definition, do not meet this criterion. at 202. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.44 Fed.Reg. 612 (1974).6 The regulations specifically address athletics at 34 C.F.R. 37%. 3331, 3335-36 and n. 9, 73 L.Ed.2d 1090 (1982); Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. of Educ. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. This prong surely requires statistical balancing. 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. 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. The factual problem presented in affirmative action cases is, Does the evidence support a finding of discrimination such that race- or gender-conscious remedial measures are appropriate? We find these multiple indicia of reliability and specificity to be sufficient to answer that question in the affirmative. The Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports. 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cohen v brown university plaintiff