LOUIS L. NOCK is an ACTING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, County of NY. This standard may be practical for certain sports that require large teams, but what of individual sports? at 3008. 37%. We conclude that the district court's application of the three-part test does not create a gender-based quota and is consistent with Title IX, 34 C.F.R. Plaintiff Description: 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 . Filed: 1993-04-16 Precedential Status: Precedential Citations: 991 F.2d 888 Docket: 92-2483 1993) (hereinafter Moore). 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. In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. of Pa., 812 F.Supp. 978 (D.R.I. Brown . A second Supreme Court case has also made it necessary to review our decision in Cohen II. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th Cir.) District Court Order at 6 (footnote omitted). Thus, the district court held that. ), cert. We also find that judicial enforcement of federal anti-discrimination statutes is at least an important governmental objective. Id. at 71,419 (Participation in intercollegiate sports has historically been emphasized for men but not women. In short, Brown treats the three-part test for compliance as a one-part test for strict liability. The district court found that these two flaws in the proposed plan were sufficient to show that Brown had not made a good faith effort to comply with this Court's mandate. Id. Id. 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. 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. The district court's interpretation of prongs one and three creates an Equal Protection problem, which I analyze in two steps. We disagree. at 190. Accordingly, the district court found that Brown maintained a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, id. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. at 2274. 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. T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. . After considering a large number of public comments, OCR published the final Policy Interpretation. at 188. of Higher Educ., 524 F.Supp. at 12. at 1771. [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [we] construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. Massachusetts Court Clarifies Recently Enacted Bond Provision in Zoning and Comprehensive Permit Appeals. In rejecting Brown's equal protection claim, the Cohen II panel stated, It is clear that Congress has broad powers under the Fifth Amendment to remedy past discrimination. 991 F.2d at 901. 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. Sign in to add some. And those characteristics are present here in spades. And if compliance with Title IX is to be measured through this sort of analysis, it is only practical that schools be given some clear way to establish that they have satisfied the requirements of the statute. The regulation at 34 C.F.R. We find no error in the district court's refusal to apply Title VII standards in its inquiry into whether Brown's intercollegiate athletics program complies with Title IX. This standard, in fact, goes farther than the straightforward quota test of prong one. Cohen II, 991 F.2d at 892 n. 2; Cohen I, 809 F.Supp. denied, 510 U.S. 1043, 114 S.Ct. 106.41, and policy interpretation, 44 Fed.Reg. at 897. Cohen v. Brown is a class-action lawsuit named for Amy Cohen, a former gymnast and plaintiff in the suit. 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. For this reason, and because recruitment of interested athletes is at the discretion of the institution, there is a risk that the institution will recruit only enough women to fill positions in a program that already under represents women, and that the smaller size of the women's program will have the effect of discouraging women's participation. The most that can be demanded is that athletics be provided in a non-discriminatory manner. Our discussion in Cohen II also cited Califano v. Webster, 430 U.S. 313, 97 S.Ct. 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. 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. at n. 47. 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. This is a curious result because the entire three-prong test is based on relative participation rates. at ----, 116 S.Ct. This is not just a matter of semantics. v. Bakke, 438 U.S. 265, 98 S.Ct. The majority is unsympathetic to Brown's claim that the disparity between athletic opportunities for men and women reflect a gender-based difference in interest levels. Kelley, 35 F.3d at 271 (footnotes omitted). See Adarand, 515 U.S. 200, 115 S.Ct. 185, 214 (D.R.I.1995) ( Cohen III). 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. at 2275 (internal quotations omitted) (emphasis added). I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. at 2724 (holding that Title VII does not prohibit private employers from voluntarily implementing race-conscious measures to eliminate manifest racial imbalances in traditionally segregated job categories); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. The prior panel considered and rejected Brown's approach, observing that Brown reads the full out of the duty to accommodate fully and effectively. Cohen II, 991 F.2d at 899. v. Bakke, 438 U.S. 265, 98 S.Ct. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . In Fullilove, a plurality of the Court applied a standard subsequently acknowledged to be intermediate scrutiny, see Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. The second prong is satisfied if an institution that cannot meet prong one can show a continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex. 44 Fed.Reg. of Med., 976 F.2d 791, 795 (1st Cir.1992), cert. 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. Cohen v. Brown University. (ii) Head coaches of all teams must field squads that meet minimum size requirements. The regulations and agency documents discussed herein were originally promulgated by HEW, the administering agency at the time, and later adopted by the present administering agency, DED. Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. supreme court rules unanimously that plaintiff's filing title IX lawsuits are entitled to receive punitive damages ($$) when . 19. Section 1681(b) was patterned after 703(j) of Title VII, 42 U.S.C. See id. [T]he Court proceeds to interpret exceedingly persuasive justification in a fashion that contradicts the reasoning of Hogan and our other precedents. Id. 4. at 2275-exceedingly persuasive justification in light of section 1681(b)'s no quota provision. 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. A. The doctrine of the law of the case directs that a decision of an appellate court on an issue of law, unless vacated or set aside, governs the issue during all subsequent stages of litigation in the nisi prius court and thereafter on any further appeal. Commercial Union Ins. at 190 n. 14. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. In so doing, we upheld the district court's analysis and ruled that an institution violates . 515, ---------, 116 S.Ct. Copyright 2023, Thomson Reuters. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. 1. Our guests were Ted Shaw of the University of North Carolina Law School and Michael Klarman of Harvard Law School. at 214. at 6. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. To do so, the school must fully and effectively accommodate the underrepresented gender's interests and abilities, even if that requires it to give the underrepresented gender (in this case, women) what amounts to a larger slice of a shrinking athletic-opportunity pie. Brown contends that the district court misconstrued and misapplied the three-part test. 1 On January 17, 2021, the Amendment to the Joint Agreement was appealed by Plaintiff Class Member Objectors. The plan focuses only on University-funded sports, ignoring the long history of successful donor-funded student teams. Subjects. 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. There is simply no other way to assess participation rates, interest levels, and abilities. The prior panel held that [t]he fact that the overrepresented gender is less than fully accommodated will not, in and of itself, excuse a shortfall in the provision of opportunities for the underrepresented gender. Cohen II, 991 F.2d at 899. 2264, 135 L.Ed.2d 735 (1996), the Court faced an Equal Protection challenge to Virginia's practice of maintaining the Virginia Military Institute as an all male institution. These conclusory assertions do not comport with the law in this circuit. examining civil rights litigation reform, part 1: qualified immunity 117th congress (2021-2022) We assume, without deciding, that Brown has not waived its equal protection claim and has standing to raise it. Id. Plaintiffs alleged that, at the time of the demotions, the men students at Brown already enjoyed the benefits of a disproportionately large share of both the university resources allocated to athletics and the intercollegiate participation opportunities afforded to student athletes. On October 27, 2021, the U.S. Court of Appeals for the First Circuit upheld the approval of the Amendment to the Joint Agreement. 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. (iii) No additional discretionary funds will be used for athletics. at 71,413. 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. 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. at 319, 97 S.Ct. In providing for gender-segregated teams, intercollegiate athletics programs necessarily allocate opportunities separately for male and female students, and, thus, any inquiry into a claim of gender discrimination must compare the athletics participation opportunities provided for men with those provided for women. at 209. ("Title IX"). how many athletic teams in Brown University by 1991? As was also the case under strict scrutiny review prior to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 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. at 71,418, in which case the compliance inquiry ends without reaching prong three. Regardless of the efforts made by the academic institution, the specter of a lawsuit would be ever-present. Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. 5. Expanding women's athletic opportunities in areas where there is proven ability and interest is the very purpose of Title IX and the simplest, least disruptive, route to Title IX compliance at Brown. 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. The fact of gender-conscious classification, even with equal enforcement with respect to both genders, requires the application of a higher level of scrutiny than rational basis review. Because the challenged classification is gender-based, it must be analyzed under the intermediate scrutiny test. at 27. The factual problem presented in affirmative action cases is, Does the evidence support a finding of discrimination such that race- or gender-conscious remedial measures are appropriate? We find these multiple indicia of reliability and specificity to be sufficient to answer that question in the affirmative. at 3-4. 379, 384 (1995) (citing Grottveit, supra). The substantial proportionality contained in Benchmark 1 merely establishes such a safe harbor. 1419, --------- and n. 6, 128 L.Ed.2d 89 (1994)), and Mississippi Univ. In Adarand, the Supreme Court reasoned that it may not always be clear that a so-called preference is in fact benign. Id. Thus, plaintiffs contended, what appeared to be the even-handed demotions of two men's and two women's teams, in fact, perpetuated Brown's discriminatory treatment of women in the administration of its intercollegiate athletics program. 106.41(c)(1). Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 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 980, and that, of the 894 undergraduate students competing on these teams, 63.3% (566) were men and 36.7% (328) were women, id. 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 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. 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. It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. 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 907, and makes it virtually impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.44 Fed.Reg. The district court found that, in 1993-94, Brown's intercollegiate athletics program consisted of 32 teams, 16 men's teams and 16 women's teams. Id. Id. Brown v. Board of Education, 347 U.S. 483 (1954) - Amicus curiae for Oliver Brown; . All of the negative effects of a quota remain,29 and the school can escape the quota under prong three only by offering preferential treatment to the group that has demonstrated less interest in athletics. In this way, Brown could easily achieve prong three's standard of full and effective accommodation of the underrepresented sex. This remedy would entail upgrading the positions of approximately 40 women. Indeed, the plan is replete with argumentative statements more appropriate for an appellate brief. In my view it is the result of the test, and not the number of steps involved, that should determine if a quota system exists. 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. Among the evidence submitted by Brown are: (i) admissions data showing greater athletic interest among male applicants than female applicants; (ii) college board data showing greater athletic interest and prior participation rates by prospective male applicants than female applicants; (iii) data from the Cooperative Institutional Research Program at UCLA indicating greater athletic interest among men than women; (iv) an independent telephone survey of 500 randomly selected Brown undergraduates that reveals that Brown offers women participation opportunities in excess of their representation in the pool of interested, qualified students; (v) intramural and club participation rates that demonstrate higher participation rates among men than women; (vi) walk-on and try-out numbers that reflect a greater interest among men than women; (vii) high school participation rates that show a much lower rate of participation among females than among males; (viii) the NCAA Gender Equity Committee data showing that women across the country participate in athletics at a lower rate than men. The district court also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams were established before 1927, virtually all of the women's varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. Comm'n, 463 U.S. 582, 103 S.Ct. The district court asserts that this is not a quota. at 469, 109 S.Ct. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. 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. at 1001, will remain in effect pending a final remedial order. Athletics are part of that curriculum. 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. at 211. at 192. Despite these statements, however, the majority in its opinion today, and the district court before it, have failed to give Brown University freedom to craft its own athletic program and to choose the priorities of that program. . Croson Co., 488 U.S. 469, 109 S.Ct. In Adarand, the Supreme Court held that all racial classifications must be analyzed under strict scrutiny. Adarand, 515 U.S. at ----, 115 S.Ct. Although we decline Brown's invitation to find that the district court's remedy was an abuse of discretion, we do find that the district court erred in substituting its own specific relief in place of Brown's statutorily permissible proposal to comply with Title IX by cutting men's teams until substantial proportionality was achieved. 5804 (1972) (remarks of Sen. Bayh); North Haven Bd. 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. at 71,413. 611(b); see Ferragamo v. Chubb Life Ins. 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. 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. Id. at 460-61 (proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause); Cannon, 441 U.S. at 681 n. 2, 99 S.Ct. at 4-5, and concludes that if the Court determines that this plan is not sufficient to reach proportionality, phase two will be the elimination of one or more men's teams, id. This case presents the issue of the legality of a federal district court's determination, based upon adjudicated findings of fact, that a federal anti-discrimination statute has been violated, and of the statutory and constitutional propriety of the judicial remedy ordered to provide redress to plaintiffs with standing who have been injured by the violation. Id. Id. Given our disposition of this claim, we do not address these arguments. at 2274 (citing J.E.B. In this case, however, the record before the prior panel was sufficiently developed and the facts necessary to shape the proper legal matrix [we]re sufficiently clear, Cohen II, 991 F.2d at 904, and nothing in the record subsequently developed at trial constitutes substantially different evidence that might undermine the validity of the prior panel's rulings of law. The district court's narrow, literal interpretation should be rejected because prong three cannot be read in isolation. Rather than simply apply the traditional test requiring that gender classifications be substantially related to an important government objective, Clark v. Jeter 486 U.S. 456, 461, 108 S.Ct. at 204 (internal quotation marks and citations omitted). Inc. v. Pena, 515 U.S. 200, ----, 115 S.Ct. Modified Order of May 4, 1995. I conclude, therefore, that Adarand and Virginia are irreconcilable with the analysis in Cohen II and, accordingly, we must follow the guidance of the Supreme Court in this appeal. 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. at 2113. 1028, 1038, 117 L.Ed.2d 208 (1992). at 208. We held that the district court erred in placing upon Brown the burden of proof under prong three of the three-part test used to determine whether an intercollegiate athletics program complies with Title IX, discussed infra. 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. 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. whether it can be demonstrated that the interests and abilities of the members of th[e] [proportionately underrepresented] sex have been fully and effectively accommodated by the present program. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. 1681(a). As to prong three, the district court found that Brown had not fully and effectively accommodated the interest and ability of the underrepresented sex to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes. Id. . The Metro Broadcasting Court distinguished Croson, noting that [i]n fact, much of the language and reasoning in Croson reaffirmed the lesson of Fullilove18 that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments. Metro Broadcasting, 497 U.S. at 565, 110 S.Ct. 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. 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. because of football teams. We reject both premises.17 Brown's implicit reliance on Adarand as contrary intervening controlling authority that warrants a departure from the law of the case doctrine is misplaced because, while Adarand does make new law, the law it makes is wholly irrelevant to the disposition of this appeal, and, even if Adarand did apply, it does not mandate the level of scrutiny to be applied to gender-conscious government action.
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