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. 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. Brown University's main campus Credit: Kylie Cooper A group of students on women's athletic teams filed a motion against Brown in 2020 after the university demoted multiple women's varsity teams to club teams, according to a press release from the American Civil Liberties Union of Rhode Island. 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. The regulation at issue in this case, 34 C.F.R. 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. I am less interested in the actual term quota than the legally cognizable characteristics that render a quota scheme impermissible. 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. of Cal. LOUIS L. NOCK is an ACTING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, County of NY. E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. Co. v. Federal Energy Regulatory Comm'n, 55 F.3d 686, 688 (1st Cir.1995). This precedent-setting ruling, which set the standard for determining a school's compliance with Title IX in . B. v. Bakke, 438 U.S. 265, 98 S.Ct. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. The only women's varsity team created after this period was winter track, in 1982. Id. Brown first contends that the court erred in barring cross-examination of plaintiffs' expert Dr. Sabor on the issue of why girls drop out of sports before reaching college. 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. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. for Women v. Hogan, 458 U.S. 718, 723-24, and n. 9, 102 S.Ct. Idk. Corp., 74 F.3d 317, 322 (1st Cir.1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). While the Policy Interpretation covers other areas, this litigation focuses on the Effective Accommodation section, which interprets 34 C.F.R. 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. Id. at 205-06, 99 S.Ct. In its discussion, the Court stated that, in order to prevail in a gender case, the State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Id. (1971), reprinted in 1972 U.S.C.C.A.N. Id. at 3336. 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. 3331, 3335-36 and n. 9, 73 L.Ed.2d 1090 (1982); Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. at 56-57. denied, 513 U.S. 1025, 115 S.Ct. v. Alabama ex rel. 106.37(c) and 106.41. The preliminary injunction issued by the district court in Cohen I, 809 F.Supp. Id. at 64-66, 71-73, 112 S.Ct. This approach contravenes the purpose of the statute and the regulation because it does not permit an institution or a district court to remedy a gender-based disparity in athletics participation opportunities. 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). at 2294 (citations omitted). 1845, 123 L.Ed.2d 470 (1993); Lamphere v. Brown Univ., 875 F.2d 916, 922 (1st Cir.1989)). 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. In Cohen v. Brown University, plaintiff Amy Cohen challenges the elimination of women's gymnastics and volleyball teams. Id. Our 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 in conducting their operations consonant with constitutional and statutory limits. . 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.)). Thus, there exists the danger that, rather than providing a true measure of women's interest in sports, statistical evidence purporting to reflect women's interest instead provides only a measure of the very discrimination that is and has been the basis for women's lack of opportunity to participate in sports. at 3008. 938, 130 L.Ed.2d 883 (1995); Favia v. Indiana Univ. 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. at 204 (internal quotation marks and citations omitted). On remand, the district court determined after a lengthy bench trial that Brown's intercollegiate athletics program violates Title IX and its supporting regulations. Cohen v. Brown University, 101 F.3d 155 (1st. at 725-28, because [s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy, Wygant, 476 U.S. at 276, 106 S.Ct. In addition to the above reasons for considering the merits of this appeal, it is important to note that Cohen II was an appeal from a preliminary injunction. of Educ., 897 F.Supp. Brown argued at trial that there is no consistent measure of actual participation rates because team size varies throughout the athletic season, and that there is no consistent measure of actual participation rates because there are alternative definitions of participant that yield very different participation totals. Id. 71,413-71,423 (1979). We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. 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. 1996) Rule: Title IX of the Education Code, 20 U.S.C.S. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. 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. 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. The court stayed this part of the order pending appeal and further ordered that, in the interim, the preliminary injunction prohibiting Brown from eliminating or demoting any existing women's varsity team would remain in effect. Id. of Educ. The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. ), cert. After rejecting Brown's proposed plan, but bearing in mind Brown's stated objectives, the district court fashioned its own remedy: I have concluded that Brown's stated objectives will be best served if I design a remedy to meet the requirements of prong three rather than prong one. In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. Brown concedes that Adarand does not, in partially overruling Metro Broadcasting, set forth the proper standard of review for this case. Appellant's Br. See Cohen II, 991 F.2d at 901. 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. at 8-9 n. 2 (While [other] indications of interest may be helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indicia[,] an institution is expected to meet the actual interests and abilities of its students and admitted students.). 1192, 51 L.Ed.2d 360 (1977) (sex)). This standard, in fact, goes farther than the straightforward quota test of prong one. 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). to participate in their sports as "intercollegiate clubs," but would not receive financial assistance from the university. Accordingly, I would reverse and remand for further proceedings. As with other anti-discrimination regimes, Title IX neither mandates a finding of discrimination based solely upon a gender-based statistical disparity, see Cohen II, 991 F.2d at 895, nor prohibits gender-conscious remedial measures. at 202, 97 S.Ct. [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. 1681(b) as a categorical proscription against consideration of gender parity. at 192. at 6. 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. Prong three of the three-prong test states that, where an institution does not comply with prongs one or two, compliance will be assessed on the basis of. It is clearly in the best interest of both the male and the female athletes to have an increase in women's opportunities and a small decrease in men's opportunities, if necessary, rather than, as under Brown's plan, no increase in women's opportunities and a large decrease in men's opportunities. See Cohen v. Brown Univ., 809 F. Supp. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. 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. Similarly, the district court's interpretation requires the school to accommodate the interests of every female student until proportionality is reached. I believe that the three prong test, as the district court interprets it, is a quota. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. Athletic Ass'n, 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. 3331, 3336-37, 73 L.Ed.2d 1090 (1982); Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. Trades Council, 485 U.S. 568, 108 S.Ct. The school argues women are less interested in sports than men. at 901 (citing Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. at 8. 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. Learn more about FindLaws newsletters, including our terms of use and privacy policy. In the course of the preliminary injunction hearing, the district court found that, in the academic year 1990-91, Brown funded 31 intercollegiate varsity teams, 16 men's teams and 15 women's teams, Cohen I, 809 F.Supp. Indeed, no governmental interest is even identified in Cohen II. Cohen II, 991 F.2d at 892 n. 2; Cohen I, 809 F.Supp. Serv. 2297, 2303, 124 L.Ed.2d 586 (1993)). 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. 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. 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. 2733, 57 L.Ed.2d 750 (1978) (striking down a state medical school's admissions policy that set aside 16 of its places for racial minorities). at 2271, 2275; id. 93-380, 88 Stat. 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 71,418). 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. The test applied by the court was based on (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 and (4) the public interest. Id. To the extent that Brown challenges the constitutionality of the statutory scheme itself, the challenge rests upon at least two erroneous assumptions: first, that Adarand is controlling authority on point that compels us, not only to consider Brown's constitutional challenge anew, but also to apply strict scrutiny to the analysis; second, that the district court's application of the law in its liability analysis on remand is inconsistent with the interpretation expounded in the prior appeal. Finally, the third prong, interpreted as the majority advocates, dispenses with statistical balancing only because it choose to accord zero weight to one side of the balance. at 1001, will remain in effect pending a final remedial order. The plan focuses only on University-funded sports, ignoring the long history of successful donor-funded student teams. Id. In considering plaintiffs' motion for a preliminary injunction in Cohen I, the district court (i) paid meticulous attention to the parties' prospects for success over the long haul; (ii) plainly visualized both the factual intricacies and legal complexities that characterize Title IX litigation; (iii) held a lengthy adversary hearing and reviewed voluminous written submissions; and (iv) correctly focused on the three-part accommodation test. Cohen II, 991 F.2d at 903. at 2288 (Rehnquist, C.J., concurring in the judgment) (collecting cases).22. 95-2205 in the Court of Appeals for the First Circuit. 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. the participation opportunities offered by an institution are measured by counting the actual participants on intercollegiate teams. 1572, 55 L.Ed.2d 797 (1978) (summary affirmance of a district court decision upholding a provision of the Railroad Retirement Act that allowed women to retire at age 60 while men could not retire until age 65). Intermediate scrutiny does not require that there be no other way to accomplish the objectives, but even if that were the standard, it would be satisfied in the unique context presented by the application of Title IX to athletics. It has been determined that Brown cannot avail itself of this defense. 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. Under the doctrine of the law of the case, a decision on an issue of law made by the court at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation except in unusual circumstances. Indeed, every circuit court to have reviewed a Title IX claim of discrimination in athletics since Cohen II was decided is in accord with its explication of the Title IX regime as it applies to athletics. 2282, 2293, 60 L.Ed.2d 870 (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. Furthermore, both of the cases cited by the court in Cohen II are cases in which a suspect classification was allowed because it was judged benign, see id. Co., 41 F.3d 764, 769 (1st. A central issue in this case is the manner in which athletic participation opportunities are counted. at 1848. See, e.g., United States v. Paradise, 480 U.S. 149, 107 S.Ct. at 190 n. 14. Cohen v. Brown University, Court Case No. Partially as a consequence of this, participation rates of women are far below those of men.). 706, 102 L.Ed.2d 854, the Court applied strict scrutiny in striking down a municipal minority set-aside program for city construction contracts. 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. We have narrowly confined the intervening controlling authority exception to Supreme Court opinions, en banc opinions of this court, or statutory overrulings. at ----, 115 S.Ct. Cohen v. Brown Univ., 809 F.Supp. Thus, the analytical result would be same, even if this were an affirmative action case. 106.1-106.71. at 208. 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. Second, the standard of review has changed. To the extent that Congress expressed a specific intent germane to the district court's interpretation, Congress, if anything, expressed an aversion to quotas as a method to enforce Title IX. 531, 536 n. 9 (1981) (citing Thomas A. Cox, Intercollegiate Athletics and Title IX, 46 Geo.Wash.L.Rev. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. The refusal to accept surveys of interest levels as evidence of interest raises the question of what indicators might be used. Inc. v. Pena, 515 U.S. 200, ----, 115 S.Ct. 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. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. In disputes over the representation of women in athletic programs, it is inevitable that statistical evidence will be relevant. 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. 1681(a) (West 1990). Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. 2. In United States v. Virginia, 518 U.S. 515, 116 S.Ct. at 71,413. See Cannon, 441 U.S. at 694, 99 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (remanding for review under strict scrutiny a challenge to a federal statute establishing a government-wide goal for awarding to minority businesses not less than 5% of the total value of all prime contracts and subcontracts for each fiscal year); Metro Broadcasting v. FCC, 497 U.S. 547, 110 S.Ct. 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. 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