Nevertheless, the remedy ordered for a violation of a federal anti-discrimination statute is still subject to equal protection review, assuming that it constitutes gender-conscious government action. 497 U.S. at 564-65, 110 S.Ct. 34, 40 (1977) (Cox)), prompting former HEW Secretary Caspar Weinberger to remark, I had not realized until the comment period that athletics is the single most important thing in the United States, id. Pub.L. With these precepts in mind, we first examine the compliance plan Brown submitted to the district court in response to its order. It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. 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. Dees asked civil rights leader Julian Bond to serve as president, a largely honorary position; he resigned in 1979 but remained on the board . Based on the facts of this case, the Court holds that . 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. 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. The Metro Broadcasting Court applied intermediate scrutiny, notwithstanding that the previous year, in Croson, 488 U.S. 469, 109 S.Ct. See Cannon, 441 U.S. at 694, 99 S.Ct. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. at 194-95 n. 23. Cohen v. Brown is a class-action lawsuit named for Amy Cohen, a former gymnast and plaintiff in the suit. 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. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. For the last twenty years, the Supreme Court has applied intermediate scrutiny to all cases raising equal protection challenges to gender-based classifications, including the Supreme Court's most recent gender discrimination case, United States v. Virginia, 518 U.S. 515, 116 S.Ct. Prior to the trial on the merits that gave rise to this appeal, the district court granted plaintiffs' motion for class certification and denied defendants' motion to dismiss. Accordingly, the Court has taken the position that voluntary affirmative action plans cannot be constitutionally justified absent a particularized factual predicate demonstrating the existence of identified discrimination, see Croson, 488 U.S. at 500-06, 109 S.Ct. 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. 5807 (1972) (statement of Sen. Bayh); 117 Cong.Rec. The district court's definition of athletics participation opportunities comports with the agency's own definition. Moreover, the Supreme Court has repeatedly condemned gender-based discrimination based upon archaic and overbroad generalizations about women. Compare Virginia, 518U.S. Title IX and its implementing regulations protect the class for whose special benefit the statute was enacted. benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives. 689, 126 L.Ed.2d 656 (1994). at 319, 97 S.Ct. 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. This is not just a matter of semantics. See Cohen II, 991 F.2d at 901. Second, the district court is not under time constraints to consider a new plan and fashion a remedy so as to expedite appeal. Cohen III, 879 F.Supp. Our discussion in Cohen II also cited Califano v. Webster, 430 U.S. 313, 97 S.Ct. 706, 721-22, 102 L.Ed.2d 854 (1989). Adarand overruled Metro Broadcasting to the extent that Metro Broadcasting is inconsistent with Adarand's holding that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. Adarand, 515U.S. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) ("Cohen II "). For the reasons that follow, we conclude that no exception to the law of the case doctrine applies here and, therefore, that Cohen II's rulings of law control the disposition of this appeal. The district court asserts that this is not a quota. See Jeffrey H. Orleans, An End To The Odyssey: Equal Athletic Opportunities For Women, 3 Duke J.Gender L. & Pol'y 131, 133-34 (1996). See 44 Fed.Reg. Athletic Ass'n, 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. 44 Fed.Reg. Nor does the second prong of the test change the analysis. a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . denied, 513 U.S. 1025, 115 S.Ct. In contrast to the employment and admissions contexts, in the athletics context, gender is not an irrelevant characteristic. The context of the case has changed in two significant respects since Brown presented its original plan. at 71,418, in which case the compliance inquiry ends without reaching prong three. While this case presents only the example of members of the underrepresented gender seeking the opportunity to participate on single-sex teams, the same analysis would apply where members of the underrepresented gender sought opportunities to play on co-ed teams. We find no error in the district court's factual findings or in its interpretation and application of the law in determining that Brown violated Title IX in the operation of its intercollegiate athletics program. 1996) 101 F.3d 155, 179-180); WHEREAS, Through the enactment of Assembly Bill No . 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. 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. 2003) on CaseMine. 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 993. 978, 1001 (D.R.I.1992) ("Cohen I "). Under the district court's interpretation, a school facing budgetary constraints must, in order to comply with prong two, increase the opportunities available to the underrepresented gender, even if it cannot afford to do so. This is a curious result because the entire three-prong test is based on relative participation rates. 12. 185, 214 (D.R.I.1995) ( Cohen III). . Surely this is a far cry from a one-step imposition of a gender-based quota. Any studies or surveys they might conduct in order to assess their own compliance would, in the event of litigation, be deemed irrelevant. at 981. Brown operates a two-tiered intercollegiate athletics program with respect to funding: although Brown provides the financial resources required to maintain its university-funded varsity teams, donor-funded varsity athletes must themselves raise the funds necessary to support their teams through private donations. See 34 C.F.R. A group of states and local governments alleged that EPA has abdicated it responsibility to regulate the emission of greenhouse gases under the Clean Air Act. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. Rather, the Seventh Circuit endorsed the test as one for compliance, in dismissing the plaintiff's claims. Under the Policy Interpretation,Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided:a. That notwithstanding, where-as here-the resulting regulation is susceptible to more than one reasonable interpretation, we owe no such deference to the interpretation chosen where the choice is made not by the agency but by the district court. Kelley, 35 F.3d at 271 (footnotes omitted). A diverse judiciary is vital to maintaining the public's confidence in the courts. at 725, to the benefit of unidentified victims of past discrimination, see id. 1996) Although written to prevent discrimination based on gender in educational institutions, Title IX perhaps more than any other law has changed the face of the sport and recreation industries. 1211, 1221-22, 79 L.Ed.2d 516 (1984) (holding that Title IX was program-specific and thus applied only to those university programs that actually receive federal funds and not to the rest of the university), with athletics prominently in mind. Although the Court in two places asks whether the State has demonstrated that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives the Court never answers the question presented in anything resembling that form. Id. See Miller, 515 U.S. at ----, 115 S.Ct. at 211. Id. Id. 1681(b) as a categorical proscription against consideration of gender parity. denied, 510 U.S. 1043, 114 S.Ct. Stay up-to-date with how the law affects your life. 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. [24] This provision governs the distribution of athletic scholarships under the general caption of financial assistance in education programs. 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. It is also worthwhile to note that to fully accommodate the interests and abilities of the underrepresented sex is an extraordinarily high-perhaps impossibly so-requirement. 1681(b) (West 1990). [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. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir. See Adarand, 515 U.S. at ----, 115 S.Ct. (c)Equal Opportunity. Id. While the Virginia Court made liberal use of the phrase exceedingly persuasive justification, and sparse use of the formulation substantially related to an important governmental objective, the Court nevertheless struck down the gender-based admissions policy at issue in that case under intermediate scrutiny, 518 U.S. at ----, ----, 116 S.Ct. See Grivois v. Brown, 6 Vet. These teams included 479 men and 312 women. Brown's interpretation conflates prongs one and three and distorts the three-part test by reducing it to an abstract, mechanical determination of strict numerical proportionality. at 2772. 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. at 189-90. 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. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.)). 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. See, e.g., United States v. Paradise, 480 U.S. 149, 107 S.Ct. Extremely Persuasive Justification Test. at 56 (citing Powers v. Ohio, 499 U.S. 400, 409-11, 111 S.Ct. In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. Appellees have argued that the three-prong test does not create a gender classification because the classification applies to both women and men. Read Cohen v. Brown University, 991 F.2d 888, see flags on bad law, and search Casetext's comprehensive legal database All State & Fed. 3221, 77 L.Ed.2d 866 (1983), agreed that injunctive relief and other equitable remedies are appropriate for violations of Title VI. The school argues women are less interested in sports than men. 1419, ---------, 128 L.Ed.2d 89 (1994). 531, 536 n. 9 (1981) (citing Thomas A. Cox, Intercollegiate Athletics and Title IX, 46 Geo.Wash.L.Rev. at 214. Therefore, like other cases of statutory interpretation, we should review the district court's reading de novo. The district court ordered Brown to submit within 120 days a comprehensive plan for complying with Title IX, but stayed that portion of the order pending appeal. The Policy Interpretation was designed specifically for intercollegiate athletics.12 44 Fed.Reg. at 6. Cohen v. Brown Univ., 809 F.Supp. 24. The instant case should be distinguished from Califano for two reasons. Horner, 43 F.3d at 273 n. 6 (citing Cohen v. Brown Univ., 991 F.2d 888, 896 n. 10 (1st Cir.1993)). First, as explained earlier, Adarand and Croson apply to review of legislative affirmative action schemes. Fourth, it is important to recognize that controlling authority does not distinguish between invidious and benign discrimination in the context of gender-based classifications, as it has in the context of racial classifications. 39,251-52 (remarks of Rep. Mink and Rep. Green). The court's remedial order required Brown to elevate and maintain at university-funded varsity status the women's gymnastics, fencing, skiing, and water polo teams. This difficulty was recognized in Cohen II, which stated that the mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team in order to comply with the third benchmark. Cohen II 991 F.2d at 898. 20 U.S.C.A. Of course, a remedy that requires an institution to cut, add, or elevate the status of athletes or entire teams may impact the genders differently, but this will be so only if there is a gender-based disparity with respect to athletics opportunities to begin with, which is the only circumstance in which prong three comes into play. As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. Id. It is women and not men who have historically and who continue to be underrepresented in sports, not only at Brown, but at universities nationwide. In reviewing equal protection challenges to such plans, the Court is concerned that government bodies are reaching out to implement race- or gender-conscious remedial measures that are ageless in their reach into the past, and timeless in their ability to affect the future, Wygant, 476 U.S. at 276, 106 S.Ct. A school can satisfy the test in three ways. . at 907, and makes it virtually impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. Nevertheless, Brown asserts that [w]hile Adarand is a case involving racial classification, its analysis clearly applies to gender classification as well. Id. at 1195-96. Thus, the district court held that. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. Second, Califano, unlike the instant case, contained an exceedingly persuasive justification for its gender-conscious state action. Id. 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). According to Brown's relative interests interpretation of the equal accommodation principle, the gender-based disparity in athletics participation opportunities at Brown is due to a lack of interest on the part of its female students, rather than to discrimination, and any attempt to remedy the disparity is, by definition, an unlawful quota. at 192. 3331, 3336-37, 73 L.Ed.2d 1090 (1982); Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 2475, 2491, 132 L.Ed.2d 762 (1995) (compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws) (citing Shaw v. Reno, 509 U.S. 630, 653-54, 113 S.Ct. at ----, 116 S.Ct. Id. This standard may be practical for certain sports that require large teams, but what of individual sports? Id. Brown v. Martinez: accidentally shot watermelon stealer Discipline Parents and in loco parentis are . 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. First, the substantive issues have been decided adversely to Brown. Robinson v Kilvert (1889) The defendants manufactured paper boxes in the cellar of a building which required hot and dry air. . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. at 3008-09 (holding that benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives). at 3336. (emphasis added). 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 706; Wygant, 476 U.S. at 276, 106 S.Ct. at 2274, for this particular quota scheme. See Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st Cir.1993); EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir.1986). Cohen III, 879 F.Supp. Because the precise questions presented regarding the proper interpretation of the Title IX framework were considered and decided by a panel of this court in the prior appeal, and because no exception to the law of the case doctrine is presented, we have no occasion to reopen the issue here. 9. This relative interests standard would entrench and fix by law the significant gender-based disparity in athletics opportunities found by the district court to exist at Brown, a finding we have held to be not clearly erroneous. 71,413, 71,418 (December 11, 1979). 1681(b). at ----, 116 S.Ct. 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). 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. at 2777 (recognizing that the authority of a federal court to incorporate racial criteria into a remedial decree also extends to statutory violations and that, where federal anti-discrimination laws have been violated, race-conscious remedies may be appropriate); Weber, 443 U.S. at 197, 99 S.Ct. Co., 3 F.3d 471, 475 (1st Cir.1993), cert. 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. Applying these principles, Cohen II held that the applicable regulation, 34 C.F.R. As Brown rightly argues, the district court's application of the three-prong test requires Brown to allocate its athletic resources to meet the as-yet-unmet interest of a member of the underrepresented sex, women in this case, while simultaneously neglecting any unmet interest among individuals of the overrepresented sex. It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. The Policy Interpretation establishes a three-part test, a two-part test, and factors to be considered in determining compliance under 34 C.F.R. See id. at 2117). If a school, like Brown, eschews the first two benchmarks of the accommodation test, electing to stray from substantial proportionality and failing to march uninterruptedly in the direction of equal athletic opportunity, it must comply with the third benchmark. 2264, 2274, 2277, 135 L.Ed.2d 735 (1996) (viewing Virginia's benign justification for a gender classification skeptically); Shuford v. Alabama State Bd. 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. 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. Home. 93-380, 88 Stat. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 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. Ryan v. Royal Ins. 30. 1681(a). Subjects. In Adarand, the Supreme Court reasoned that it may not always be clear that a so-called preference is in fact benign. Id. By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. 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. While the Supreme Court in Virginia acknowledged that [p]hysical differences between men and women are enduring, id.
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