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 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. Id. Moreover, the Supreme Court has repeatedly condemned gender-based discrimination based upon archaic and overbroad generalizations about women. Given our disposition of this claim, we do not address these arguments. Where such a disparity has been established, the inquiry under prong three is whether the athletics interests and abilities of the underrepresented gender are fully and effectively accommodated, such that the institution may be found to comply with Title IX, notwithstanding the disparity.23. (original emphasis omitted). 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. at 541). Amy Cohen v. Brown University, 991 F.2d 888, 1st Cir. Finding Brown's bare assertions to be unpersuasive, we decline the invitation to this court to change its mind. The precedent established by the prior panel is not clearly erroneous; it is the law of this case and the law of this circuit. The district court found that the women's gymnastics team had won the Ivy League championship in 1989-90 and was a thriving university-funded varsity team prior to the 1991 demotion; that the donor-funded women's fencing team had been successful for many years and that its request to be upgraded to varsity status had been supported by the athletics director at the time; that the donor-funded women's ski team had been consistently competitive despite a meager budget; and that the club-status women's water polo team had demonstrated the interest and ability to compete at full varsity status. Further, inappropriately relying on Frontiero, 411 U.S. 677, 93 S.Ct. 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. This policy is comparable to prong one of the three prong test and is, without a doubt, a quota. Appellee's Br. 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. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. Walsh v. Home. A school is not required to sponsor an athletic program of any particular size. The Fullilove plurality inquired whether the objectives of th[e] legislation are within the power of Congress [] and whether the limited use of racial and ethnic criteria is a constitutionally permissible means for achieving the congressional objectives. 448 U.S. at 473, 100 S.Ct. At issue in this appeal is the proper interpretation of the first of these, the so-called three-part test,7 which inquires as follows: (1)Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or, (2)Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or. 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. Brown merely asserts, however, that the study was admissible under Rule 803, id. at ----, 115 S.Ct. how many athletic teams in Brown University by 1991? 1946, 1961, 60 L.Ed.2d 560 (1979). I see no possible justification for this interpretation-the regulation is intended to protect against discrimination, not to promote athletics on college campuses. 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. at 55. Cohen II, 991 F.2d at 900-901. First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. of Higher Educ., 524 F.Supp. First, as Brown points out, the Regulation that includes prong three provides that, in assessing compliance under the regulation, the governing principle in this area is that the athletic interests and abilities of male and female students be equally effectively accommodated. Policy Interpretation, 44 Fed.Reg. 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. The law of the case doctrine is a prudential rule of policy and practice, rather than an absolute bar to reconsideration [] or a limitation on a federal court's power. Rivera-Martinez, 931 F.2d at 150-51. 1192, 51 L.Ed.2d 360 (1977), which has not been explicitly overruled. 30,407 (1971) (same)). at 71,419 (Participation in intercollegiate sports has historically been emphasized for men but not women. Brown impliedly assumes that Adarand' s partial overruling of Metro Broadcasting invalidates the prior panel's disposition of Brown's equal protection challenge by virtue of its passing citation to Metro Broadcasting. Brown's argument that the Supreme Court's recent decision in Adarand Constr., Inc. v. Pena, 515 U.S. 200, 115 S.Ct. at 902 (citing 44 Fed.Reg. The court found, however, that it is difficult for donor-funded varsity athletes to maintain a level of competitiveness commensurate with their abilities and that these athletes operate at a competitive disadvantage in comparison to university-funded varsity athletes. Co. of Am., 916 F.2d 731, 734 (1st Cir.1990) (It is settled in this circuit that issues adverted to on appeal in a perfunctory manner, unaccompanied by some developed argumentation, are deemed to have been abandoned.) (citations omitted). at 211. 1764, 1769-70, 36 L.Ed.2d 583 (1973). at 981. 1392, 99 L.Ed.2d 645 (1988); see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. Trades Council, 485 U.S. 568, 108 S.Ct. Co., 41 F.3d 764, 769 (1st. Two schools declined to include Brown in future varsity schedules when women's volleyball was demoted to donor-funded status. Additionally, section 1681(a), a provision enacted by Congress as part of Title IX itself, casts doubt on the district court's reading of prong three. 1996) Rule: Title IX of the Education Code, 20 U.S.C.S. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 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. Both doctrines reflect concerns that have long been recognized as fundamentally important to the rule of law-e.g., stability, predictability, and respect for judicial authority-and both doctrines are applied with more or less rigidity depending on which interest is served. Id. 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 . In short, Brown treats the three-part test for compliance as a one-part test for strict liability. In the course of the trial on the merits, the district court found that, in 1993-94, there were 897 students participating in intercollegiate varsity athletics, of which 61.87% (555) were men and 38.13% (342) were women. at 3008-09. In this unique context, Title IX operates to ensure that the gender-segregated allocation of athletics opportunities does not disadvantage either gender. See Personnel Adm'r v. Feeney, 442 U.S. 256, 273, 99 S.Ct. Cohen II's assumption that a regulation slanted in favor of women would be permissible, Cohen II 991 F.2d at 901, and by implication that the same regulation would be impermissible if it favored men, was based on Metro Broadcasting, which held that benign race-based action by the federal government was subject to a lower standard than non-remedial race-based action. T.B., 511 U.S. 127, 136-37, 114 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. See Cohen v. Brown Univ., 809 F. Supp. Cohen III, 879 F.Supp. 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). See Adarand, 515 U.S. at ----, 115 S.Ct. Cohen II held that the Policy Interpretation is entitled to substantial deference because it is the enforcing agency's considered interpretation of the regulation. 991 F.2d at 896-97. at 204 (internal quotation marks and citations omitted). Bob Jones University v. United States; City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983). Cohen II, 991 F.2d at 897. Therefore, like other cases of statutory interpretation, we should review the district court's reading de novo. As noted previously, Croson is an affirmative action case and does not control review of a judicial determination that a federal anti-discrimination statute has been violated. Thus, the district court held that. See Miller v. Johnson, 515 U.S. 900, ----, 115 S.Ct. Sch. 14. at 1196. 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. In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. 106.41(c)(1), the first of the non-exhaustive list of ten factors to be considered in determining whether equal athletics opportunities are available to both genders. Case: Cohen v. Brown University 1:92-cv-00197 | U.S. District Court for the District of Rhode Island. Trial on the merits has served to focus these questions and to provide background that allows us to consider these questions in the proper context and in detail. 15. at n. 47. 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. However, in Kelley, the Seventh Circuit, unlike the district court, did not use the three-prong test as a definitive test for liability. The original Cohen case was settled in 1998 by Joint Agreement. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). To accomplish these objectives, Congress directed all agencies extending financial assistance to educational institutions to develop procedures for terminating financial assistance to institutions that violate Title IX. Mora v. J&M Plating, Inc., 2022 IL App (2d) 210692, 2022 WL 17335861 (2022). of the Commonwealth Sys. at 71,418. E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. - 991 F.2d 888 (1st Cir. First, we now have a full record before us and a set of well-defined legal questions presented by the appellant. ; see also North Haven, 456 U.S. at 521, 102 S.Ct. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. Brown is no longer an appellant seeking a favorable result in the Court of Appeals. Nor do the regulations require institutions to field gender-integrated teams:However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport.Id.Whether or not the institution maintains gender-segregated teams, it must provide gender-blind equality of opportunity to its student body. Cohen II, 991 F.2d at 896. 3331, 3335-36 and n. 9, 73 L.Ed.2d 1090 (1982); Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 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. ; 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. See H.R.Rep. In addition, there is ample evidence that increased athletics participation opportunities for women and young girls, available as a result of Title IX enforcement, have had salutary effects in other areas of societal concern. Accordingly, even assuming that the three-part test creates a gender classification that favors women, allowing consideration of gender in determining the remedy for a Title IX violation serves the important objective of ensur[ing] that in instances where overall athletic opportunities decrease, the actual opportunities available to the underrepresented gender do not. Kelley, 35 F.3d at 272. Cohen v. Brown University, 101 F.3d 155 (1st. 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. 17. at ----, 116 S.Ct. While the Title IX regime permits institutions to maintain gender-segregated teams, the law does not require that student-athletes attending institutions receiving federal funds must compete on gender-segregated teams; nor does the law require that institutions provide completely gender-integrated athletics programs.14 To the extent that Title IX allows institutions to maintain single-sex teams and gender-segregated athletics programs, men and women do not compete against each other for places on team rosters. I recognize the financial constraints Brown faces; however, its own priorities will necessarily determine the path to compliance it elects to take. 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. 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. As to the propriety of Brown's proposal to come into compliance by the addition of junior varsity positions, the district court held: Positions on distinct junior varsity squads do not qualify as intercollegiate competition opportunities under the Policy Interpretation and should not be included in defendants' plan. This suit was initiated in response to the demotion in May 1991 of Brown's women's gymnastics and volleyball teams from university-funded varsity status to donor-funded varsity status. Instead, the law requires that, absent a demonstration of continuing program expansion for the underrepresented gender under prong two of the three-part test, an institution must either provide athletics opportunities in proportion to the gender composition of the student body so as to satisfy prong one, or fully accommodate the interests and abilities of athletes of the underrepresented gender under prong three. Compare Virginia, 518U.S. at 57, and offers no explanation as to how it was prejudiced by the exclusion. Section 1681(b) provides: Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area. This assumption is erroneous because the proposition for which Cohen II cited Metro Broadcasting as authority has not been vitiated by Adarand, is of no consequence to our disposition of the issues raised in this litigation, and is, in any event, unchallenged here.19. Indeed, no governmental interest is even identified in Cohen II. 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. Snyder v. Turk: doctor shoved nurse into cavity . A university does not treat its men's and women's teams equally if it allows the coaches of men's teams to set their own maximum capacity limits but overrides the judgment of coaches of women's teams on the same matter. To do so, the University must disregard the expressed athletic interests of one gender while providing advantages for others. 1681(b) (West 1990) (emphasis added). 1992). 1993) Key Search Terms: Title IX, cut-backs, college athletics Facts In response to budgeting restrictions and financial problems, Brown University demoted women's volleyball, women's gymnastics, men's golf, and men's water polo to intercollegiate club sports. 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. 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. 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. With these precepts in mind, we first examine the compliance plan Brown submitted to the district court in response to its order. at 3008-10 (for the proposition that Congress need not make specific findings of discrimination to grant race-conscious relief), and Califano v. Webster, 430 U.S. at 317, 97 S.Ct. As the prior panel recognized, while the question of full and effective accommodation of athletics interests and abilities is potentially a complicated issue where plaintiffs seek to create a new team or to elevate to varsity status a team that has never competed at the varsity level, no such difficulty is presented here, where plaintiffs seek to reinstate what were successful university-funded teams right up until the moment the teams were demoted.16 Cohen II, 991 F.2d at 904; see also Cohen I, 809 F.Supp. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) (Cohen II). Copyright 2023, Thomson Reuters. 2816, 2830-31, 125 L.Ed.2d 511 (1993)). Law School Case Brief; Cohen v. Brown Univ. Court records for this case are available from U.S. Court Of Appeals, First Circuit. Indeed, Brown argues as if the prior panel had not decided the precise statutory interpretation questions presented (which it clearly did) and as if the district court's liability analysis were contrary to the law enunciated in Cohen II (which it clearly is not). If so, the inquiry ends and Brown should be judged to be in compliance. 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 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. 19. 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. Indeed, the plan is replete with argumentative statements more appropriate for an appellate brief. Id. Brown also claims error in the district court's failure to apply Title VII standards to its analysis of whether Brown's intercollegiate athletics program complies with Title IX. This appeal followed. The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. at 205. [n]othing contained [therein] shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of the sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community. Amy Cohen (plaintiff), a member of the women's gymnastics team, and several other student-athletes filed suit against Brown alleging that the institution violated Title IX. The first prong is met if the school provides participation opportunities for male and female students in numbers substantially proportionate to their enrollments. 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. 2282, 2293, 60 L.Ed.2d 870 (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1993) (hereinafter Moore). The right to injunctive relief under Title IX appears to have been impliedly accepted by the Supreme Court in Franklin. of Educ., 897 F.Supp. Because I am not persuaded that the majority's view represents the state of the law today, I respectfully dissent. The doctrine requires a trial court on remand to dispose of the case in accordance with the appellate court's mandate by implementing both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces, United States v. Connell, 6 F.3d 27, 30 (1st Cir.1993) (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991)), and binds newly constituted panels to prior panel decisions on point, e.g., Irving v. United States, 49 F.3d 830, 833-34 (1st Cir.1995); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935, 939 n. 3 (1st Cir.1993). at 211, and that [a]lthough the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes, id. 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