While affirmative action may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. at 189 n. 6. 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. of Educ., 897 F.Supp. 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. See, e.g., Mike Tharp et al., Sports crazy! Furthermore, the claim that a reduction in the opportunities given to the overrepresented gender is an unacceptable method of coming into compliance with the three prong test is contrary to both Cohen II and comments of the majority opinion. The logic of this position escapes me. Another important distinction between this case and affirmative action cases is that the district court's remedy requiring Brown to accommodate fully and effectively the athletics interests and abilities of its women students does not raise the concerns underlying the Supreme Court's requirement of a particularized factual predicate to justify voluntary affirmative action plans. Although the statute itself provides for no remedies beyond the termination of federal funding, the Supreme Court has determined that Title IX is enforceable through an implied private right of action, Cannon, 441 U.S. at 703, 99 S.Ct. denied, 502 U.S. 862, 112 S.Ct. Brown contends that an athletics program equally accommodates both genders and complies with Title IX if it accommodates the relative interests and abilities of its male and female students. Even a single person with a reasonable unmet interest defeats compliance. at 1176 (citation omitted). 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. at 1917-18 (directing that Title IX must be accorded a sweep as broad as its language). Brown, on the other hand, argues that prong three is satisfied when (1) the interests and abilities of members of the proportionately underrepresented gender (2) are accommodated to the same degree as the proportionately overrepresented gender. 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). Filed: 1993-04-16 Precedential Status: Precedential Citations: 991 F.2d 888 Docket: 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. Kuttner, supra, at A15. Id. The regulation at 34 C.F.R. Serv. 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. 1681(b) as a categorical proscription against consideration of gender parity. at 5. 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. Nor does the second prong of the test change the analysis. 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. at 24, and that the law of the case doctrine does not prevent a court from changing its mind, id. Opinion for Amy Cohen v. Brown University, 991 F.2d 888 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. Further, as the district court noted in its opinion after the trial on the merits, [n]othing in the record before me, now fully developed, undermines the considered legal framework established by the First Circuit at the preliminary injunction stage. Cohen III, 879 F.Supp. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. Also consistent with the school desegregation cases, the substantial proportionality test of prong one is applied under the Title IX framework, not mechanically, but case-by-case, in a fact-specific manner. Comm'n, 463 U.S. 582, 103 S.Ct. We think it important to bear in mind, however, the congressional concerns that inform the proper interpretation of this provision. 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. at 3008, in upholding against a Fifth Amendment equal protection challenge a benign race-based affirmative action program that was adopted by an agency at the explicit direction of Congress. 1681-1688 (Title IX), and its implementing regulations, 34 C.F.R. Accordingly, we remand the case to the district court so that Brown can submit a further plan for its consideration. 106.41, the Policy Interpretation, and the mandate of Cohen II. - 101 F.3d 155 (1st Cir. Pub.L. at 993. For the reasons that follow, we conclude that no exception to the law of the case doctrine applies here and, therefore, that Cohen II's rulings of law control the disposition of this appeal. The 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. denied, 513 U.S. 1025, 115 S.Ct. Rather than conduct an inquiry into whether Title IX and its resulting interpretations are benign or remedial, and conscious of the fact that labels can be used to hide illegitimate notions of inferiority or simple politics just as easily in the context of gender as in the context of race, we should now follow Adarand's lead and subject all gender-conscious government action to the same inquiry.25. at 981. These Olympians represent the first full generation of women to grow up under the aegis of Title IX. at 211. We agree with the prior panel and the district court that Brown's relative interests approach cannot withstand scrutiny on either legal or policy grounds, Cohen II, 991 F.2d at 900, because it disadvantages women and undermines the remedial purposes of Title IX by limiting required program expansion for the underrepresented sex to the status quo level of relative interests, Cohen III, 879 F.Supp. Brown contends that the district court misconstrued and misapplied the three-part test. See Williams v. School Dist. at 2274 (citing J.E.B. Cohen II, 991 F.2d at 901. Second, Brown's efforts to evade the controlling authority of Cohen II by recasting its core legal arguments as challenges to the district court's interpretation of the law are unavailing; the primary arguments raised here have already been litigated and decided adversely to Brown in the prior appeal. 6. Our guests were Ted Shaw of the University of North Carolina Law School and Michael Klarman of Harvard Law School. Brown, who previously served in the Antitrust Division of the United States Department of Justice, brings to his role extensive experience leading complex litigation, particularly As explained previously, Title IX as it applies to athletics is distinct from other anti-discrimination regimes in that it is impossible to determine compliance or to devise a remedy without counting and comparing opportunities with gender explicitly in mind. Nevertheless, Brown asserts that [w]hile Adarand is a case involving racial classification, its analysis clearly applies to gender classification as well. Id. Cohen II, 991 F.2d at 906; Villanueva, 930 F.2d at 129. A school can satisfy the test in three ways. Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI. The Bond InjunctionSchooner Lost. 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. In the spring of 1991, Brown announced that it, like many other schools, was in a financial bind, and that, as a belt-tightening measure, it planned to drop four sports from its . 106.41 (1995), provides: (a)General. Brown's talismanic incantation of affirmative action has no legal application to this case and is not helpful to Brown's cause. at 2772. Accordingly, I would reverse and remand for further proceedings. Thus, to the extent that Brown challenges the statutory scheme itself, that challenge is foreclosed under the law of the case doctrine. Of the university-funded teams, 12 were men's teams and 13 were women's teams; of the donor-funded teams, three were women's teams and four were men's teams. Instead, this approach freezes that disparity by law, thereby disadvantaging further the underrepresented gender. Metro Broadcasting, and our application of its intermediate scrutiny standard in Cohen II, omitted the additional skeptical scrutiny requirement of an exceedingly persuasive justification for gender-based government action. at 541). Thus, we have not construed the doctrine as an inflexible straitjacket that invariably requires rigid compliance. Northeast Utils. 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. 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. 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. 18. First, the district court's interpretation creates a quota scheme. at ----, 115 S.Ct. 1996) Rule: Title IX of the Education Code, 20 U.S.C.S. Although I agree that by its words, the test would apply to men at institutions where they are proportionately underrepresented in intercollegiate athletics, I cannot accept the argument that, via this provision, the Government does not classify its citizens by gender. Appellees have argued that the three-prong test does not create a gender classification because the classification applies to both women and men. Therefore, like other cases of statutory interpretation, we should review the district court's reading de novo. Although the three-prong test, even as interpreted by the district court, appears to allow the school the opportunity to show a lack of interest, the majority rejects the best-and perhaps the only-mechanism for making such a showing. To the extent that the rate of interest in athletics diverges between men and women at any institution, the district court's interpretation would require that such an institution treat an individual male student's athletic interest and an individual female student's athletic interest completely differently: one student's reasonable interest would have to be met, by law, while meeting the other student's interest would only aggravate the lack of proportionality giving rise to the legal duty. of Educ., 402 U.S. 1, 25, 91 S.Ct. 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. at 211. to participate in their sports as "intercollegiate clubs," but would not receive financial assistance from the university. at 202. Although the Court in two places asks whether the State has demonstrated that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives the Court never answers the question presented in anything resembling that form. Id. at 200, intercollegiate teams are those that regularly participate in varsity competition. See 44 Fed.Reg. A. The most that can be demanded is that athletics be provided in a non-discriminatory manner. The email address cannot be subscribed. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. (quoting Regents of Univ. Equal Protection is implicated where the claim is made that a classification made by the government intentionally subjects an individual to treatment different from similarly situated individuals based on an impermissible characteristic, such as race, national origin, or gender. 23. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. 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 2271, 2275; id. Compare Virginia, 518U.S. Id. The context of the case has changed in two significant respects since Brown presented its original plan. 1392, 99 L.Ed.2d 645 (1988); see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. The Policy Interpretation was designed specifically for intercollegiate athletics.12 44 Fed.Reg. 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. 2755, 2762-63, 49 L.Ed.2d 651 (1976). 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. On October 27, 2021, the U.S. Court of Appeals for the First Circuit upheld the approval of the Amendment to the Joint Agreement. It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. 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. Appellant's Br. Synopsis of Rule of Law. 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. 2000d (Title VI).8 See Cannon, 441 U.S. at 696, 99 S.Ct. 30,407 (1971) (same)). [a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are benign or remedial and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Majority Opinion at 163. 1549, 1554-55, 71 L.Ed.2d 770 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. Learn more about FindLaws newsletters, including our terms of use and privacy policy. - 991 F.2d 888 (1st Cir. Even under the individual rights theory of equal protection, reaffirmed in Adarand, 515 U.S. at ----, 115 S.Ct. 497 U.S. at 564-65, 110 S.Ct. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. 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. 28. If so, the inquiry ends and Brown should be judged to be in compliance. Here, however, it has not been shown that Brown's men students will be disadvantaged by the full and effective accommodation of the athletics interests and abilities of its women students. 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.. 95-2205 in the Court of Appeals for the First Circuit. 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. 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. Cf. 1996) Although written to prevent discrimination based on gender in educational institutions, Title IX perhaps more than any other law has changed the face of the sport and recreation industries. at 211. at 2275-exceedingly persuasive justification in light of section 1681(b)'s no quota provision. By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. Brown merely asserts, however, that the study was admissible under Rule 803, id. Brown violated Title IX in 2020 when it eliminated 11 sports Third, even if Adarand did apply, it does not dictate the level of scrutiny to be applied in this case, as Brown concedes. at 71,413 n. 1. 706, 102 L.Ed.2d 854 (1989) (striking down a municipal set-aside program requiring that 30% of the city's construction dollars be paid to racial minority subcontractors on an annual basis); Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. Appellees argue that this claim is waived because Brown did not raise it in the district court. 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. at 3026 (emphasis added). at 194-95 n. 23. 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. 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. Under intermediate scrutiny, the burden of demonstrating an exceedingly persuasive justification for a government-imposed, gender-conscious classification is met by showing that the classification serves important governmental objectives, and that the means employed are substantially related to the achievement of those objectives. The district court found that Brown saved $62,028 by demoting the women's teams and $15,795 by demoting the men's teams, but that the demotions did not appreciably affect the athletic participation gender ratio. Cohen III at 187 n. 2. The instant case should be distinguished from Califano for two reasons. 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 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. In particular, this Policy Interpretation provides a means to assess an institution's compliance with the equal opportunity requirements of the regulation which are set forth at [34 C.F.R. 706, 102 L.Ed.2d 854, the Court applied strict scrutiny in striking down a municipal minority set-aside program for city construction contracts. At any rate, Kelley pre-dates the Supreme Court's opinions in Adarand and Virginia, meaning that it suffers from the same defects as Cohen II. Copyright 2023, Thomson Reuters. at 71,413. 1028, 1038, 117 L.Ed.2d 208 (1992). 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. On remand, the district court properly applied the legal framework elucidated in Cohen II and explicitly followed this court's mandate in according controlling weight to the regulation and substantial deference to the Policy Interpretation. Title IX is an anti-discrimination statute, modeled after Title VI of the Civil Rights Act of 1964, 42 U.S.C. The same could be said of any individual sport, including golf, track and field, cycling, fencing, archery, and so on. Co. v. Walbrook Ins. 1171, 1175-76, 113 L.Ed.2d 117 (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 1992). Bernier v. Boston Edison Co.: bad driver lady crashed into bad . Cohen III, 879 F.Supp. Id. 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. See H.R.Rep. 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. 71,413, 71,418 (December 11, 1979). 106.41(c)(1). at 46, 54, 125, 129, 152, 177, 299-300 (1975); 118 Cong.Rec. 1195, 1199, 67 L.Ed.2d 428 (1981); Hogan, 458 U.S. at 724, 102 S.Ct. As recently set forth in Virginia, [p]arties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. Virginia, 518 U.S. at ----, 116 S.Ct. Regardless of how many steps are involved, the fact remains that the test requires proportionate participation opportunities for both sexes (prong one) unless one sex is simply not interested in participating (prong three). Brown maintains that the district court's decision imposes upon universities the obligation to engage in preferential treatment for women by requiring quotas in excess of women's relative interests and abilities. It is well established, however, that a decision of the Supreme Court, that is rendered between two appeals and is irreconcilable with the decision on the first appeal, must be followed on the second appeal. 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. 2997, 111 L.Ed.2d 445 (1990) (race); Califano v. Webster, 430 U.S. 313, 97 S.Ct. at ----, 115 S.Ct. at 469, 109 S.Ct. Order of August 17, 1995 at 11. 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. Municipal minority set-aside program for city construction contracts fully accommodate the interests abilities... The cases refer to each part of this three-part test as a prong or a.! At 200, intercollegiate teams are those that regularly participate in varsity competition for proceedings... 34 C.F.R.. 95-2205 in the court of Appeals for the first full generation of women to grow up the!, 25, 91 S.Ct statute, Title VI of the Policy Interpretation was designed specifically for intercollegiate athletics.12 Fed.Reg. The cases refer to each part of this court affirmed the district court misconstrued and misapplied the test. ( 1990 ) ( race ) ; 118 Cong.Rec does the second prong of the University of North Carolina School... Legislature, for that matter, to mandate programs of a given size 467 U.S.,! ( 1992 ), for that matter, to the substantial deference because it an... 46, 54, 125, 129, 152, 177, 299-300 ( 1975 ;! Given size that this claim is waived because Brown did not raise it in the district court that. Theory of equal protection, reaffirmed in adarand, 515 U.S. at -- --, 115 S.Ct: ( ). Have different connotations as a matter of politics, as a prong or a.. 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