at 2117). In United States v. Virginia, 518 U.S. 515, 116 S.Ct. Although Cohen II, in its brief discussion of the equal protection issue, does not specify the precise standard it used, the court stated that even if we were to assume that the regulation creates a gender classification slanted somewhat in favor of women, we would find no constitutional infirmity. Cohen II, 991 F.2d at 901. 65, 74 L.Ed.2d 66 (1982). at ----, 116 S.Ct. at 205-06, 99 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. In counting participation opportunities, therefore, it does not make sense to include in the calculus athletes participating in contact sports that include only men's teams. I believe that we face such a situation in the instant case. Prong three requires some kind of evidence of interest in athletics, and the Title IX framework permits the use of statistical evidence in assessing the level of interest in sports.15 Nevertheless, to allow a numbers-based lack-of-interest defense to become the instrument of further discrimination against the underrepresented gender would pervert the remedial purpose of Title IX. 5. The court noted further that, because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender, the fact that Brown has eliminated or demoted several men's teams does not amount to a continuing practice of program expansion for women. 106.41(b)(1995) provides that an academic institution may operate 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. 34 C.F.R. 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 . From a constitutional standpoint, the case before us is altogether different. Rather than respecting the school's right to determine the role athletics will play in the future-including reducing the opportunities available to the formerly overrepresented gender to ensure proportionate opportunities-the district court and the majority demand that the absolute number of opportunities provided to the underrepresented gender be increased. Applying these principles, Cohen II held that the applicable regulation, 34 C.F.R. At trial, Brown argued that, in order to succeed on prong one, plaintiffs bear the burden of proving that the percentage of women among varsity athletes is not substantially proportionate to the percentage of women among students interested in participating in varsity athletics. Cohen III, 879 F.Supp. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. at 2288 (Rehnquist, C.J., concurring in the judgment), the standard applied to gender-based classifications since 1976, when it was first announced in Craig v. Boren, 429 U.S. at 197, 97 S.Ct. What is important for our purposes is that the Supreme Court appears to have elevated the test applicable to sex discrimination cases to require an exceedingly persuasive justification. This is evident from the language of both the majority opinion and the dissent in Virginia. 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. Even a single person with a reasonable unmet interest defeats compliance. The Clarification Memorandum contains many examples illustrating how institutions may meet each prong of the three-part test and explains how participation opportunities are to be counted under Title IX. - 101 F.3d 155 (1st Cir. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. We do, however, find error in the district court's award of specific relief and therefore remand the case to the district court for reconsideration of the remedy in light of this opinion. 1287, 1288-89, 28 L.Ed.2d 582 (1971) (recognizing that measures required to remedy race discrimination will almost invariably require race-conscious classifications, and that [a]ny other approach would freeze the status quo that is the very target of all desegregation processes). at 211. On October 27, 2021, the U.S. Court of Appeals for the First Circuit upheld the approval of the Amendment to the Joint Agreement. Id. 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. However, in Kelley, the Seventh Circuit, unlike the district court, did not use the three-prong test as a definitive test for liability. 706, 102 L.Ed.2d 854, Brown concludes that strict scrutiny applies to gender-based classifications.21 Appellant's Br. 2097, 2111-12, 132 L.Ed.2d 158 (1995). Rather than create a quota or preference, this unavoidably gender-conscious comparison merely provides for the allocation of athletics resources and participation opportunities between the sexes in a non-discriminatory manner. 578, 584 (W.D.Pa. Indeed, despite Brown's attempt to present evidence in support of its claim, the majority characterizes Brown's argument as an unproven assertion. Majority Opinion at 178.30. In Frontiero, a plurality of the Court concluded that gender-based classifications, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. 411 U.S. at 688, 93 S.Ct. 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. 106.41(c)(1) (1995), regardless of its performance with respect to other Title IX areas. 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. at 2113. See Cohen v. Brown Univ., 809 F. Supp. 1764, 1769-70, 36 L.Ed.2d 583 (1973). at 2113. 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. 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. 1535, 1557 (D.Ala.1995) (stating that courts must look behind the recitation of a benign purpose to ensure that sex-based classifications redress past discrimination). Thus, the analytical result would be same, even if this were an affirmative action case. Plaintiff: Amy Cohen and other members of the gymnastics team as well as member of the women's volleyball team. Cohen III, 879 F.Supp. at ----, 115 S.Ct. 9. The original Cohen case was settled in 1998 by Joint Agreement. Id. With respect to prong three, Brown asserts that the district court's interpretation of the word fully requires universities to favor women's teams and treat them better than men's [teams] forces them to eliminate or cap men's teams [and] forces universities to impose athletic quotas in excess of relative interests and abilities. Appellant's Br. v. Bakke, 438 U.S. 265, 98 S.Ct. 689, 126 L.Ed.2d 656 (1994). Majority Opinion at 163. Only where the plaintiff meets the burden of proof on these elements and the institution fails to show as an affirmative defense a history and continuing practice of program expansion responsive to the interests and abilities of the underrepresented gender will liability be established. 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 other words, evidence of differential levels of interest is not to be credited because it may simply reflect the result of past discrimination. Pub.L. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.)). Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. Thus, Title IX and Title VI share the same constitutional underpinnings. 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. 44 Fed.Reg. Co. v. Federal Energy Regulatory Comm'n, 55 F.3d 686, 688 (1st Cir.1995). We conclude that, even if it can be empirically demonstrated that, at a particular time, women have less interest in sports than do men, such evidence, standing alone, cannot justify providing fewer athletics opportunities for women than for men. I am not persuaded by the majority's argument that the three-part test does not constitute a quota because it does not permit an agency or court to find a violation solely on the basis of prong one of the test; instead, an institution must also fail prongs two and three. Accordingly, and notwithstanding Brown's protestations to the contrary, the Title VII concept of the qualified pool has no place in a Title IX analysis of equal opportunities for male and female athletes because women are not qualified to compete for positions on men's teams, and vice-versa. 398. Under even the largest athletic program, it would be surprising to find that there is not a single student who would prefer to participate in athletics but does not do so because the school does not offer a program in the particular sport that interests the student. at 15, because the urged interpretation is illogical, conflicts with the Constitution, the Statute, the Regulation, other Agency materials and practices, existing analogous caselaw and, in addition, is bad policy, 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. at ----, 116 S.Ct. The district court concluded that intercollegiate athletics opportunities means real opportunities, not illusory ones, and therefore should be measured by counting actual participants. Id. U.S. District Court Senior . Brown claims that the district court erred in excluding evidence pertaining to the relative athletic interests of men and women at the university. The agency responsible for administering Title IX is the United States Department of Education (DED), through its Office for Civil Rights (OCR).5 Congress expressly delegated to DED the authority to promulgate regulations for determining whether an athletics program complies with Title IX. at 2274. Second, Adarand does not even discuss gender discrimination, and its holding is limited to explicitly race-based classifications. 611(b); see Ferragamo v. Chubb Life Ins. 515, ----, ----, 116 S.Ct. Mr. Brown is also the chairman of the firm's Executive Committee and the Managing Partner Elect.Mr. The district court noted that there may be other women's club sports with sufficient interest and ability to warrant elevation to varsity status, but that plaintiffs did not introduce at trial substantial evidence demonstrating the existence of other women's club teams meeting the criteria. As a consequence of these demotions, all four teams lost, not only their university funding, but most of the support and privileges that accompany university-funded varsity status at Brown. The plan sets forth nine steps for its implementation, id. Cohen v. Brown Univ., 879 F.Supp. 580, 126 L.Ed.2d 478 (1993). at 2726-27 (construing the prohibition against race discrimination contained in 703(a) and (d) of Title VII, and concluding that an interpretation of the sections that forbade all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected) (internal quotation marks and citations omitted); id. Title IX was passed with two objectives in mind: to avoid the use of federal resources to support discriminatory practices, and to provide individual citizens effective protection against those practices. Cannon v. University of Chicago, 441 U.S. 677, 704, 99 S.Ct. Cohen I - Plaintiffs asked for a preliminary injunction that would require Brown to fund the women's teams and refrain from further reductions in direct funding for women's teams until the case could be heard. 1192, 51 L.Ed.2d 360 (1977), which has not been explicitly overruled. at 2276, it went on to state that such [i]nherent differences' between men and women, we have come to appreciate, remain cause for celebration, but not for artificial constraints on an individual's opportunity. Id. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. No tags have been applied so far. 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. A viable tennis team may require only a single player. at 214. 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. (b)Separate teams. Benjamin D. Brown is a partner at Cohen Milstein and co-chair of the Antitrust practice group. [a]n institution does not provide equal opportunity if it caps its men's teams after they are well-stocked with high-caliber recruits while requiring women's teams to boost numbers by accepting walk-ons. 118 Cong.Rec. See id. 1192, 51 L.Ed.2d 360 (1977) (sex)). Id. The law of the case doctrine precludes relitigation of the legal issues presented in successive stages of a single case once those issues have been decided. 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. at 1195-96. This argument rests, in part, upon Brown's reading of 20 U.S.C. 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. 1681(a) (1988). 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. Any studies or surveys they might conduct in order to assess their own compliance would, in the event of litigation, be deemed irrelevant. Home. at 2274 (citing J.E.B. 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. at 55. When an appeal comes to us in that posture, the appellate court's conclusions as to the merits of the issues presented on preliminary injunction are to be understood as statements of probable outcomes, rather than as comprising the ultimate law of the case. A.M. Capen's Co. v. American Trading and Prod. Synopsis of Rule of Law. Unless the two genders participate equally in athletics, members of the underrepresented sex would have the ability to demand a varsity level team at any time if they can show sufficient interest. Cohen II, 991 F.2d at 897. 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. This is a class action lawsuit charging Brown University, its president, and its athletics director (collectively Brown) with discrimination against women in the operation of its intercollegiate athletics program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 39,251-52 (remarks of Rep. Mink and Rep. Green). See Missouri v. Jenkins, 515 U.S. 70, ----, 115 S.Ct. Brown states that it seeks to address the issue of proportionality while minimizing additional undue stress on already strained physical and fiscal resources. Id. 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. We find no error in the district court's definition and calculation of the intercollegiate athletics participation opportunities afforded to Brown students, and no error in the court's finding of a 13.01% disparity between the percentage of women participating in intercollegiate varsity athletics at Brown and the percentage of women in Brown's undergraduate student body. of Pa., 812 F.Supp. at 189. 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. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. Furthermore, the majority recognizes that institutions are entitled to use any nondiscriminatory method of their choosing to determine athletic interests. The Court in Adarand singled out Metro Broadcasting as a significant departure from much of the Equal Protection jurisprudence that had come before it, in part because it suggested that benign government race-conscious classifications should be treated less skeptically than others. After mapping Title IX's rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties' arguments, we affirm. Accordingly, we have held that only a few exceptional circumstances can overcome the interests served by adherence to the doctrine and these exceptions are narrowly circumscribed. at 1001, will remain in effect pending a final remedial order. 2282, 2293, 60 L.Ed.2d 870 (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1B Moore at 0.404[1]. 106.41(c)(1). 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. 93-380, 88 Stat. 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 Court also requires a focus on whether the proffered justification is exceedingly persuasive. Id. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II), the standard intermediate scrutiny test for discriminatory classifications based on sex required that a statutory classification must be substantially related to an important government objective. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. The same could be said of any individual sport, including golf, track and field, cycling, fencing, archery, and so on. 2264, 2274, 2277, 135 L.Ed.2d 735 (1996) (viewing Virginia's benign justification for a gender classification skeptically); Shuford v. Alabama State Bd. Finally, it is important to remember that Brown University is a private institution with a constitutionally protected First Amendment right to choose its curriculum. In 2018, the defendant established a . Thus, to the extent that Brown challenges the statutory scheme itself, that challenge is foreclosed under the law of the case doctrine. 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. Thus, the district court held that. at ----, 116 S.Ct. at 565, 110 S.Ct. Cohen v. Brown University 1st Circuit Court of Appeals 991 F.2d 888 (1st Cir. As have a number of other circuits, we have determined that issues decided on appeal should not be reopened unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. Rivera-Martinez, 931 F.2d at 151 (quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967)) (other citations omitted). 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 1848. Cohen II, 991 F.2d at 901. at 208. We also observed, however, that [w]e are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations. 991 F.2d at 906 (citing Wynne v. Tufts Univ. . Subjects. The majority quotes approvingly from Cohen v. Brown Univ., 879 F.Supp. 24. Second, Califano, unlike the instant case, contained an exceedingly persuasive justification for its gender-conscious state action. 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. 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. 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. United States Court of Appeals for the First Circuit. Majority Opinion at 185 (quoting Cohen III). It is obvious that Brown's plan was addressed to this court, rather than to offering a workable solution to a difficult problem. Additionally, the Supreme Court endorsed the view that. Nevertheless, the doctrine serves important goals and must be treated respectfully and, in the absence of exceptional circumstances, applied according to its tenor. Rivera-Martinez, 931 F.2d at 151. 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.. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. 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. While the Policy Interpretation covers other areas, this litigation focuses on the Effective Accommodation section, which interprets 34 C.F.R. This appeal followed. 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. In 1993-94, then, Brown's varsity program-including both university- and donor-funded sports-afforded over 200 more positions for men than for women. 684, 121 L.Ed.2d 605 (1993); Young v. Herring, 917 F.2d 858 (5th Cir.1990); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.1981), cert. LOUIS L. NOCK is an ACTING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, County of NY. 2997, 111 L.Ed.2d 445 (1990) (race); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 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. Brown's efforts to circumvent the controlling effect of Cohen II are unavailing, however, because, under the law of the case doctrine, we are bound in this appeal, as was the district court on remand, by the prior panel's rulings of law. Request Update Get E-Mail Alerts : Text: Citations (268) Cited By (1) UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. Subsequently, after hearing fourteen days of testimony, the district court granted plaintiffs' motion for a preliminary injunction, ordering, inter alia, that the women's gymnastics and volleyball teams be reinstated to university-funded varsity status, and prohibiting Brown from eliminating or reducing the status or funding of any existing women's intercollegiate varsity team until the case was resolved on the merits. Because I am not persuaded that the majority's view represents the state of the law today, I respectfully dissent. Serv. An ACTING JUSTICE of the Antitrust practice group Trading and Prod refer to part. The cases refer to each part of this three-part test as a prong or a benchmark argument error! The court also requires a focus on whether the proffered justification is persuasive. Same constitutional underpinnings interprets 34 C.F.R 809 F. Supp the state of new YORK, County NY! 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