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. In Adarand, the Supreme Court held that all racial classifications must be analyzed under strict scrutiny. Adarand, 515 U.S. at ----, 115 S.Ct. 1. Accordingly, we remand the case to the district court so that Brown can submit a further plan for its consideration. 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. 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. Subsection (b) also provides, however, that it shall not be construed to prevent the consideration in any proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex. Id. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) (Cohen II). 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. Junior varsity squads, by definition, do not meet this criterion. 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. 1549, 1554-55, 71 L.Ed.2d 770 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. Application of the Policy Interpretation is not limited to intercollegiate athletics, however. at ----, 116 S.Ct. Id. at 71,413. Accordingly, the district court excluded club varsity teams from the definition of intercollegiate teams and, therefore, from the calculation of participation opportunities, because the evidence was inadequate to show that the club teams regularly participated in varsity competition. No. Title IX and its implementing regulations protect the class for whose special benefit the statute was enacted. at 901 (citing Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. at 1917-18 (directing that Title IX must be accorded a sweep as broad as its language). at 194. We note that Brown presses its relative interests argument under both prong one and prong three. 44 Fed.Reg. 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. See Clarification Memorandum at 8 (If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability or available competition no longer exists.); id. As a result, I opt for Brown's construction of prong three, which, as we have discussed, infra, is also a reasonable reading. at 210-13. Nor does the second prong of the test change the analysis. U.S. District Court Chief Judge John McConnell, Jr. approved a stipulated order today in Cohen v.Brown University, the landmark Title IX case, requiring Brown University to pay $1,135,000 for the attorneys' fees and $40,000 for the litigation expenses incurred by the class of women student-athletes who challenged the school's elimination of women's teams from its varsity intercollegiate . 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. Of the university-funded teams, 12 were men's teams and 13 were women's teams; of the donor-funded teams, three were women's teams and four were men's teams. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. 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. Cohen v. Smith: male nurse touched no touch pregnant lady. 44 Fed.Reg. 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. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. at 15, because the urged interpretation is illogical, conflicts with the Constitution, the Statute, the Regulation, other Agency materials and practices, existing analogous caselaw and, in addition, is bad policy, id. at 1035-36). 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. While affirmative action may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. Title VI prohibits discrimination on the basis of race, color, or national origin in institutions benefitting from federal funds. T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. Co., 3 F.3d 471, 475 (1st Cir.1993), cert. Athletic Ass'n, 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. [a]n institution does not provide equal opportunity if it caps its men's teams after they are well-stocked with high-caliber recruits while requiring women's teams to boost numbers by accepting walk-ons. Brown, who previously served in the Antitrust Division of the United States Department of Justice, brings to his role extensive experience leading complex litigation, particularly . See Cannon, 441 U.S. at 694, 99 S.Ct. Extremely Persuasive Justification Test. 1681(b) (West 1990). 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. 1195, 1199, 67 L.Ed.2d 428 (1981); Hogan, 458 U.S. at 724, 102 S.Ct. 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. Walsh v. Cohen v. Brown Univ., 809 F.Supp. At issue in this appeal is the proper interpretation of the first of these, the so-called three-part test,7 which inquires as follows: (1)Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or, (2)Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. Neither appellees nor the district court have demonstrated an exceedingly persuasive justification for the government action that the district court has directed in this case. 1287, 1288-89, 28 L.Ed.2d 582 (1971) (recognizing that measures required to remedy race discrimination will almost invariably require race-conscious classifications, and that [a]ny other approach would freeze the status quo that is the very target of all desegregation processes). at ----, 115 S.Ct. at 204, 97 S.Ct. 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. 515 U.S. at ----, 115 S.Ct. at 2274, for this particular quota scheme. While cognizant of differences between race-focused and gender-focused Equal Protection precedent, I nevertheless think that Adarand compels us to view so-called benign gender-conscious governmental actions under the same lens as any other gender-conscious governmental actions. There is little more than that, because Congress adopted Title IX as a floor amendment without committee hearings or reports. (citing Cox at 34, quoting N.Y.Times, June 27, 1975, at 16, col. 4). This action was taken to ensure that the Order was final for purposes of this court's jurisdiction, and to expedite the appeal process. I believe that the three prong test, as the district court interprets it, is a quota. The panel then carefully delineated the burden of proof, which requires a Title IX plaintiff to show, not only disparity between the gender composition of the institution's student body and its athletic program, thereby proving that there is an underrepresented gender, id. On October 27, 2021, the U.S. Court of Appeals for the First Circuit upheld the approval of the Amendment to the Joint Agreement. Here, Brown argues that its challenge is to the decision of the district court. The law of the case doctrine is a prudential rule of policy and practice, rather than an absolute bar to reconsideration [] or a limitation on a federal court's power. Rivera-Martinez, 931 F.2d at 150-51. Under such conditions, a school may be unable to succeed under the second prong because there may not be enough interested female students to achieve a continuing increase in the number of female participants. The easy answer lies in ordering Brown to comply with prong three by upgrading the women's gymnastics, fencing, skiing, and water polo teams to university-funded varsity status. at 319, 97 S.Ct. 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. While we have acknowledged that there are exceptions to the law of the case doctrine, we have emphasized that the circumstances in which they apply are rare. Co. v. Walbrook Ins. Amy Cohen (plaintiff), a member of the . 549 U.S 497 (2007) Brief Fact Summary. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th Cir.) Since the applicable regulation, 34 C.F.R. As the Supreme Court has explained, [b]ecause applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers. Martin, 499 U.S. at 151, 111 S.Ct. EPA questioned the petitioners' standing to invoke the court's jurisdiction under Article III. 2581, 135 L.Ed.2d 1095 (1996).27, The majority claims that neither the Policy Interpretation nor the district court's interpretation of it, mandates statistical balancing. Majority Opinion at 175. at 3026 (emphasis added). denied sub nom. 1764, 1769-70, 36 L.Ed.2d 583 (1973). See 1B James W. Moore et al., Moore's Federal Practice 0.404 [1] (2d ed. 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. 185, 214 (D.R.I.1995) ( Cohen III). at 194-95 n. 23. 2264, 135 L.Ed.2d 735 (1996) ( Virginia); see id. This conclusion is consistent with Cohen II, which states that a school may achieve compliance by reducing opportunities for the overrepresented gender. Cf. The district court noted that the four demoted teams were eligible for NCAA competition, provided that they were able to raise the funds necessary to maintain a sufficient level of competitiveness, and provided that they continued to comply with NCAA requirements. Plaintiff: Amy Cohen and other members of the gymnastics team as well as member of the women's volleyball team. A central issue in this case is the manner in which athletic participation opportunities are counted. The regulation at 34 C.F.R. at 1846-47. There is simply no other way to assess participation rates, interest levels, and abilities. 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. We acknowledge that we have repeatedly emphasized that conclusions and holdings regarding the merits of issues presented on appeal from a grant of a preliminary injunction are to be understood as statements as to probable outcomes. Kelley, 35 F.3d at 271 (footnotes omitted). a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . We find no error in the district court's definition and calculation of the intercollegiate athletics participation opportunities afforded to Brown students, and no error in the court's finding of a 13.01% disparity between the percentage of women participating in intercollegiate varsity athletics at Brown and the percentage of women in Brown's undergraduate student body. 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. While the Supreme Court in Virginia acknowledged that [p]hysical differences between men and women are enduring, id. Massachusetts Court Clarifies Recently Enacted Bond Provision in Zoning and Comprehensive Permit Appeals. at 189 n. 6. 2097, 2111-12, 132 L.Ed.2d 158 (1995). 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. This is a class action lawsuit charging Brown University, its president, and its athletic director (collectively "Brown") with violating Title IX of the Education Amendments of 1972, 20 U.S.C. 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. at 204 (internal quotation marks and citations omitted). Rather than create a quota or preference, this unavoidably gender-conscious comparison merely provides for the allocation of athletics resources and participation opportunities between the sexes in a non-discriminatory manner. The majority pays lip service to these concerns in the final pages of its long opinion, stating that we are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations. Majority Opinion at 185 (quoting Cohen II, 991 F.2d at 906), and [o]ur 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. Majority Opinion at 185. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. 379, 384 (1995) (citing Grottveit, supra). Citation. at 190. 1731, 1736-37, 14 L.Ed.2d 601 (1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12 (1st Cir.1991), rev'd on other grounds, 506 U.S. 139, 113 S.Ct. 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. See Horner v. Kentucky High Sch. Whatever may be the merits of adopting strict scrutiny as the standard to be applied to gender-based classifications, it is inappropriate to suggest, as Brown does, that Frontiero compels its application here.Brown's assertion that Adarand obligates this court to apply Croson to its equal protection claim is also incorrect. First, despite the fact that 76 men and 30 women participated on donor-funded varsity teams, Brown's proposed plan disregarded donor-funded varsity teams. Id. Serv. 1681, et seq. 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. As interpreted by the district court, the test constitutes an affirmative action, quota-based scheme. at 200, intercollegiate teams are those that regularly participate in varsity competition. See 44 Fed.Reg. at 192. With respect to prong three, Brown asserts that the district court's interpretation of the word fully requires universities to favor women's teams and treat them better than men's [teams] forces them to eliminate or cap men's teams [and] forces universities to impose athletic quotas in excess of relative interests and abilities. Appellant's Br. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. Mora v. J&M Plating, Inc., 2022 IL App (2d) 210692, 2022 WL 17335861 (2022). at 205. This is a class action lawsuit charging Brown University, its President, and its Athletic Director (collectively "defendants" or "Brown") with discriminating against women in the operation of its intercollegiate athletic program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. The case is now before us on appeal from the merits and we must review it accordingly. (iii) No additional discretionary funds will be used for athletics. 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. at 11. See Cohen II, 991 F.2d at 898 n. 15. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). I believe that we face such a situation in the instant case. 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. 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. at 188 n. 4. Under the Policy Interpretation,Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided:a. 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. at ----, 116 S.Ct. The Southern Poverty Law Center was founded by civil rights lawyers Morris Dees and Joseph J. Levin Jr. in August 1971 as a law firm originally focused on issues such as fighting poverty, racial discrimination and the death penalty in the United States. [24] This provision governs the distribution of athletic scholarships under the general caption of financial assistance in education programs. See Adarand, 515 U.S. 200, 115 S.Ct. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . Cohen v. Brown Univ., 809 F.Supp. at 3008-09. v. Bakke, 438 U.S. 265, 98 S.Ct. 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 . Applying the second prong of the intermediate scrutiny test, we find that the means employed by the district court in fashioning relief for the statutory violation are clearly substantially related to these important objectives. The district court's definition of athletics participation opportunities comports with the agency's own definition. The district court found that Brown saved $62,028 by demoting the women's teams and $15,795 by demoting the men's teams, but that the demotions did not appreciably affect the athletic participation gender ratio. Cohen III at 187 n. 2. 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 992 (Brown is cutting off varsity opportunities where there is great interest and talent, and where Brown still has an imbalance between men and women varsity athletes in relation to their undergraduate enrollments.). at 2117). While we acknowledge that the law of the case doctrine is subject to exceptions, we conclude that none applies here, and that the decision rendered by the prior panel in the first appeal is not, as Brown claims, legally defective. Accordingly, we decline Brown's invitation to undertake plenary review of issues decided in the previous appeal and treat Cohen II as controlling authority, dispositive of the core issues raised here. 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. at 189. 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