Brown also contends that the district court erred in excluding the NCAA Annual Report. While it is difficult to point to one particular case and hold it up as the definitive . Neither the Policy Interpretation's three-part test, nor the district court's interpretation of it, mandates statistical balancing; [r]ather, the policy interpretation merely creates a presumption that a school is in compliance with Title IX and the applicable regulation when it achieves such a statistical balance. Kelley, 35 F.3d at 271. 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. 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. Appellees argue that this claim is waived because Brown did not raise it in the district court. See Cohen II, 991 F.2d at 902 (citing Lipsett v. University of P.R., 864 F.2d 881, 897 (1st Cir.1988)); but see Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.1995) (Title VII sexual harassment standards applied to Title IX sexual harassment case in non-employment context), cert. Title IX provides that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C.A. For example, the district court found that some schools are reluctant to include donor-funded teams in their varsity schedules3 and that donor-funded teams are unable to obtain varsity-level coaching, recruits, and funds for travel, equipment, and post-season competition. In addition, the majority has put the power to control athletics and the provision of athletic resources in the hands of the underrepresented gender. 1682. 1195, 1199, 67 L.Ed.2d 428 (1981); Hogan, 458 U.S. at 724, 102 S.Ct. Reasoning that [w]here both the athlete and coach determine that there is a place on the team for a student, it is not for this Court to second-guess their judgment and impose its own, or anyone else's, definition of a valuable or genuine varsity experience, the district court concluded that [e]very varsity team member is therefore a varsity participant. 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. at 2274, which requires that [p]arties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action, id. the participation opportunities offered by an institution are measured by counting the actual participants on intercollegiate teams. This action was taken to ensure that the Order was final for purposes of this court's jurisdiction, and to expedite the appeal process. at 205. 18. This precedent-setting ruling, which set the standard for determining a school's compliance with Title IX in . Specifically, the Supreme Court announced that. Cohen III, 879 F.Supp. Any studies or surveys they might conduct in order to assess their own compliance would, in the event of litigation, be deemed irrelevant. Trades Council, 485 U.S. 568, 108 S.Ct. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. 106.41(b) (1995) ([A] recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.) (emphasis added). denied, 502 U.S. 862, 112 S.Ct. I agree with Brown that, in the context of OCR's Policy Interpretation, prong three is susceptible to at least these two plausible interpretations. 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. We cannot pretend that an interpretation of a statute that contains explicit categorization according to gender and that has intentional gender-conscious effect does not represent gender-based government action. 3331, 3336, 73 L.Ed.2d 1090 (1982), with Metro Broadcasting, 497 U.S. at 564-65, 110 S.Ct. (Cohen v. Brown University, (1st Cir. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. 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. See Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. Co., 74 F.3d 317, 322 (1st Cir.1996) (internal quotations omitted); see also Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). Research the case of Cohen v. Brown University, from the First Circuit, 01-16-1996. In the first appeal, a panel of this court elucidated the applicable legal framework, upholding the substance of the district court's interpretation and application of the law in granting plaintiffs' motion for a preliminary injunction,1 and rejecting essentially the same legal arguments Brown makes here. 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. 497 U.S. at 564-65, 110 S.Ct. As a result, I opt for Brown's construction of prong three, which, as we have discussed, infra, is also a reasonable reading. See Cohen II, 991 F.2d at 901. Each prong of the Policy Interpretation's three-part test determines compliance in this manner. The district court's decision to fashion specific relief was made, in part, to avoid protracted litigation over the compliance plan and to expedite the appeal on the issue of liability. 2997, 111 L.Ed.2d 445 (1990) (race); Califano v. Webster, 430 U.S. 313, 97 S.Ct. Rather than conduct an inquiry into whether Title IX and its resulting interpretations are benign or remedial, and conscious of the fact that labels can be used to hide illegitimate notions of inferiority or simple politics just as easily in the context of gender as in the context of race, we should now follow Adarand's lead and subject all gender-conscious government action to the same inquiry.25. LOUIS L. NOCK is an ACTING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, County of NY. 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. 451, 462-463, 50 L.Ed.2d 397 (1976), stressed that the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities. See also id. These Olympians represent the first full generation of women to grow up under the aegis of Title IX. of Higher Educ., 524 F.Supp. Contact us. 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. Under the three-part test, the institution may also excuse the disparity under prong two, by showing a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the [underrepresented gender], 44 Fed.Reg. at 71,419 (Participation in intercollegiate sports has historically been emphasized for men but not women. 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. of Bethlehem, Pa., 998 F.2d 168, 175 (1993) (observing that, although Title IX and its regulations apply equally to boys and girls, it would require blinders to ignore that the motivation for promulgation of the regulation on athletics was the historic emphasis on boys' athletic programs to the exclusion of girls' athletic programs in high schools as well as colleges), cert. Cases and commentators sometimes treat cases involving involuntarily implemented plans-e.g., plans adopted pursuant to a consent decree or a contempt order-as affirmative action cases. supra; Heuer v. Brown, 7 Vet.App. It does not follow from our statutory and constitutional analyses that we endorse the district court's remedial order. (b)Separate teams. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. of Cal. 26. Therefore, we review the constitutionality of the district court's order requiring Brown to comply with Title IX by accommodating fully and effectively the athletics interests and abilities of its women students. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) ("Cohen II "). In light of the above, Brown argues that prong three is in fact ambiguous with respect to whether fully means (1) an institution must meet 100% of the underrepresented gender's unmet reasonable interest and ability, or (2) an institution must meet the underrepresented gender's unmet reasonable interest and ability as fully as it meets those of the overrepresented gender. 30,407 (1971) (same)). to participate in their sports as "intercollegiate clubs," but would not receive financial assistance from the university. at 29; Reply Br. 1681-1688 (Title IX), and its implementing regulations, 34 C.F.R. Cohen v. Brown Univ., 809 F.Supp. the ratio of women athlete in Brown University in 1991. (1971), reprinted in 1972 U.S.C.C.A.N. Brown has contended throughout this litigation that the significant disparity in athletics opportunities for men and women at Brown is the result of a gender-based differential in the level of interest in sports and that the district court's application of the three-part test requires universities to provide athletics opportunities for women to an extent that exceeds their relative interests and abilities in sports. Cohen I, 809 F.Supp. 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. 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. (v) Brown will make explicit a de facto junior varsity team for women's field hockey. Accordingly, we remand the case to the district court so that Brown can submit a further plan for its consideration. at 192. 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. Athletics are part of that curriculum. Stay up-to-date with how the law affects your life. 572, 577-78, 42 L.Ed.2d 610 (1975). 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. Cohen III, 879 F.Supp. In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. In November 1996, we won a ruling in federal court that Brown University violated Title IX when it demoted its women's gymnastics and volleyball teams from university-funded to donor-funded varsity status. 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. 978, 1001 (D.R.I.1992) ("Cohen I "). As a result, individual male and female students would be precluded from competing against each other for scarce resources; they would instead compete only against members of their own gender. at 190. True affirmative action cases have historically involved a voluntary10 undertaking to remedy discrimination (as in a program implemented by a governmental body, or by a private employer or institution), by means of specific group-based preferences or numerical goals, and a specific timetable for achieving those goals. at 1957 (The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years.). at 2772. 14. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. Cohen III, 879 F.Supp. of Educ. Order of August 17, 1995 at 11. Nor do the regulations require institutions to field gender-integrated teams:However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport.Id.Whether or not the institution maintains gender-segregated teams, it must provide gender-blind equality of opportunity to its student body. Cohen II, 991 F.2d at 896. The injury in cases of this kind is that a discriminatory classification prevent [s] competition on an equal footing. Adarand, 515 U.S. at ----, 115 S.Ct. at 205. 106.41, deserves controlling weight, 991 F.2d at 895; that the Policy Interpretation warrants substantial deference, id. Junior varsity squads, by definition, do not meet this criterion. 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. 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 188. Brown also fails to recognize that Title IX's remedial focus is, quite properly, not on the overrepresented gender, but on the underrepresented gender; in this case, women. [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. denied, 510 U.S. 1043, 114 S.Ct. In United States v. Virginia, 518 U.S. 515, 116 S.Ct. Id. Ronald D. Rotunda & John E. Nowak, 3 Treatise on Constitutional Law 18.2, at 7-8 (2d ed. See Cohen v. Brown Univ., 16 F.4th 935, 940-41 (1st Cir. The district court's conclusion with respect to prong two, however, implies that a school must not only demonstrate that the proportion of women in their program is growing over time, it must also show that the absolute number of women participating is increasing.26. 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. Surely this is a far cry from a one-step imposition of a gender-based quota. at 200, intercollegiate teams are those that regularly participate in varsity competition. See 44 Fed.Reg. Cir. at 210 n. 51; see 1990 Investigator's Manual at 27 (explaining that a survey or assessment of interests and abilities is not required by the Title IX regulation or the Policy Interpretation but may be required as part of a remedy when OCR has concluded that an institution's current program does not equally effectively accommodate the interests and abilities of students). 1817, 1821-22, 18 L.Ed.2d 1010 (1967) (stating that even though the statute at issue applied equally to members of different racial classifications, it still implicated race-related Equal Protection concerns, since the statute itself contained race-conscious classifications). 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. It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. 1 On January 17, 2021, the Amendment to the Joint Agreement was appealed by Plaintiff Class Member Objectors. [T]he Court proceeds to interpret exceedingly persuasive justification in a fashion that contradicts the reasoning of Hogan and our other precedents. Id. It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. In fact, appellees have failed to point to any congressional statement or indication of intent regarding a proportional representation scheme as applied by the district court. 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. at 214. The case is now before us on appeal from the merits and we must review it accordingly. at 188 n. 4. No. The District Court's Interpretation and the Resulting Equal Protection Problem. Metro Broadcasting, and our application of its intermediate scrutiny standard in Cohen II, omitted the additional skeptical scrutiny requirement of an exceedingly persuasive justification for gender-based government action. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. 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 565, 110 S.Ct. The district court entered final judgment on September 1, 1995, and on September 27, 1995, denied Brown's motion for additional findings of fact and to amend the judgment. at 192. [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. 15 women's athletic teams (328) 16 men's teams (63%, 566) What Brown did to handle with the problem that there were many athletes. Thus, Brown will fully comply with Title IX by meeting the standards of prong three, without approaching satisfaction of the standards of prong one. at 71,413. at 2294 (citations omitted). 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. See id. While acknowledging that Brown has an impressive history of program expansion, the district court found that Brown failed to demonstrate that it has maintained a continuing practice of intercollegiate program expansion for women, the underrepresented sex. Id. See Cohen III, 879 F.Supp. 1993) (hereinafter Moore). 2721, 61 L.Ed.2d 480 (1979) (upholding a collective bargaining agreement that set aside for blacks half the places in a new training program until the percentage of blacks among skilled workers at the plant was commensurate with the percentage of blacks in the local labor force); Regents of the Univ. Title VI prohibits discrimination on the basis of race, color, or national origin in institutions benefitting from federal funds. (iii) No additional discretionary funds will be used for athletics. Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. In other words, the second prong also requires balancing. First, as Brown points out, the Regulation that includes prong three provides that, in assessing compliance under the regulation, the governing principle in this area is that the athletic interests and abilities of male and female students be equally effectively accommodated. Policy Interpretation, 44 Fed.Reg. Based on the facts of this case, the Court holds that . Id. at ----, 115 S.Ct. 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 214; see also Cohen II, 991 F.2d at 898 n. 15 (noting that a school may achieve compliance with Title IX by reducing opportunities for the overrepresented gender). of Med., 976 F.2d 791, 795 (1st Cir.1992), cert. The first prong is met if the school provides participation opportunities for male and female students in numbers substantially proportionate to their enrollments. For example, if a university chooses to sponsor a football team, it is permitted to sponsor only a men's team. The context of the case has changed in two significant respects since Brown presented its original plan. Thus, although we understand the district court's reasons for substituting its own specific relief under the circumstances at the time, and although the district court's remedy is within the statutory margins and constitutional, we think that the district court was wrong to reject out-of-hand Brown's alternative plan to reduce the number of men's varsity teams. The regulation at issue in this case, 34 C.F.R. Additionally, section 1681(a), a provision enacted by Congress as part of Title IX itself, casts doubt on the district court's reading of prong three. Issue in this case, 34 C.F.R, 87 S.Ct D. 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