denied, 516 U.S. 1159, 116 S.Ct. As previously noted, Title IX itself specifies only that the statute shall not be interpreted to require gender-based preferential or disparate treatment. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. at 1193-94. (Cohen v. Brown University, (1st Cir. 44 Fed.Reg. We therefore affirm in all respects the district court's analysis and rulings on the issue of liability. 1682. In 2018, the defendant established a . The substantial proportionality contained in Benchmark 1 merely establishes such a safe harbor. at 190 n. 14. In Cohen II, we applied precisely this type of benign-classification analysis to what we viewed to be benign gender discrimination by the federal government. Rather, the Seventh Circuit endorsed the test as one for compliance, in dismissing the plaintiff's claims. at 71,418. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. Filed Date: April 9, 1992 . Pub.L. 978, 1001 (D.R.I.1992) (Cohen I). Market-leading rankings and editorial commentary - see the top law firms & lawyers for Product liability, mass tort and class action - defense: consumer products (including tobacco) in United States That prong merely recognizes that a school may not be able to meet the quotas of the first or third prong immediately, and therefore deems it sufficient to show program expansion that is responsive to the interests of the underrepresented sex. 2305, 2310-11, 81 L.Ed.2d 164 (1984)).9. 71,418, are not manifestly contrary to the objectives of Title IX, and Congress has specifically delegated to an agency the responsibility to articulate standards governing a particular area, we must accord the ensuing regulation considerable deference. 71,413, 71,414. (concluding that not only would government action precluding competition between individuals of different races for law school admissions be unconstitutional, but in fact even partial consideration of race among other factors would be unconstitutional), cert. 5807 (1972) (statement of Sen. Bayh); 117 Cong.Rec. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. The district court's narrow, literal interpretation should be rejected because prong three cannot be read in isolation. The district court asserts that this is not a quota. 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. In addition, a majority of the Court in Guardians Ass'n v. Civil Serv. 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. 978, 1001 (D.R.I.1992) ("Cohen I "). 398. Brown therefore should be afforded the opportunity to submit another plan for compliance with Title IX. 1681(a). Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. 2097, 2111-12, 132 L.Ed.2d 158 (1995). Since the applicable regulation, 34 C.F.R. Nevertheless, the University wishes to act in good faith with the order of the Court, notwithstanding issues of fact and law which are currently in dispute. The district court itself pointed out that Brown may achieve compliance with Title IX in a number of ways: It may eliminate its athletic program altogether, it may elevate or create the requisite number of women's positions, it may demote or eliminate the requisite number of men's positions, or it may implement a combination of these remedies. of the Commonwealth Sys. 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. After rejecting Brown's proposed plan, but bearing in mind Brown's stated objectives, the district court fashioned its own remedy: I have concluded that Brown's stated objectives will be best served if I design a remedy to meet the requirements of prong three rather than prong one. District Court Order at 5-6. We are left with the explanations discussed in Cohen II to the effect that Congress conducted hearings on the subject of discrimination against women in education. Because I am not persuaded that the majority's view represents the state of the law today, I respectfully dissent. 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. 106.41, deserves controlling weight, 991 F.2d at 895; that the Policy Interpretation warrants substantial deference, id. Given our disposition of this claim, we do not address these arguments. at 2276, it went on to state that such [i]nherent differences' between men and women, we have come to appreciate, remain cause for celebration, but not for artificial constraints on an individual's opportunity. Id. 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. 106.41(c)(1). Brown v. Board of Education, 347 U.S. 483 (1954) - Amicus curiae for Oliver Brown; . It is obvious that Brown's plan was addressed to this court, rather than to offering a workable solution to a difficult problem. 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). To the extent that Congress expressed a specific intent germane to the district court's interpretation, Congress, if anything, expressed an aversion to quotas as a method to enforce Title IX. Cohen II, 991 F.2d at 900-901. 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. Instead, this approach freezes that disparity by law, thereby disadvantaging further the underrepresented gender. See 44 Fed.Reg. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. at 8. In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court established that the government generally cannot criminalize the display of profane words in public places.. Cohen charged with beaching peace for wearing profane jacket. Cohen v. Brown University. Although I agree that by its words, the test would apply to men at institutions where they are proportionately underrepresented in intercollegiate athletics, I cannot accept the argument that, via this provision, the Government does not classify its citizens by gender. . Cohen II, 991 F.2d at 901. After mapping Title IX's rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties' arguments, we affirm. at 188. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . v. Bell, 456 U.S. 512, 523 n. 13, 102 S.Ct. at 204, 97 S.Ct. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. 19 (2022), the Massachusetts Supreme Judicial . 1442, 94 L.Ed.2d 615 (1986) (upholding a temporary program authorizing a county agency to consider sex and race as factors in making promotions in order to achieve a statistically measurable improvement in the representation of women and minorities in major job classifications in which they had been historically underrepresented); Wygant v. Jackson Bd. at 5. 9. Second, Adarand does not even discuss gender discrimination, and its holding is limited to explicitly race-based classifications. Home. 1910, 1914, 100 L.Ed.2d 465 (1988), the Supreme Court applied a more searching skeptical scrutiny of official action denying rights or opportunities based on sex, id., at ----, 116 S.Ct. 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. Id. Because Dr. Sabor's direct testimony did not address this issue, it was within the district court's discretion to limit cross-examination to the subject matter of the direct examination. Fed.R.Evid. It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. Had Congress intended to entrench, rather than change, the status quo-with its historical emphasis on men's participation opportunities to the detriment of women's opportunities-it need not have gone to all the trouble of enacting Title IX. 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). 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. No aspect of the Title IX regime at issue in this case-inclusive of the statute, the relevant regulation, and the pertinent agency documents-mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals. We also observed, however, that [w]e are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations. 991 F.2d at 906 (citing Wynne v. Tufts Univ. We do not question Cohen II's application of 1681(b). But any such departure demands special justification.) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. See H.R.Rep. 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. 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. On remand, the district court determined after a lengthy bench trial that Brown's intercollegiate athletics program violates Title IX and its supporting regulations. 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. Cohen III, 879 F.Supp. 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. The public perceives a judiciary that reflects a cross-section of its community as fairer with the potential to be better understand--or excuse me--with the potential to better understand their realities. Cohen II, 991 F.2d at 901 (finding no constitutional infirmity, assuming arguendo, that the regulation creates a classification somewhat in favor of women). 19. 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. Brown's relative interests approach is not a reasonable interpretation of the three-part test. Although the district court excluded as full exhibits two studies, the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, it nevertheless permitted Brown's experts to rely on the data contained in these two reports as a basis for their expert opinions.24 Because Brown's experts relied upon the excluded data in providing their opinions on the issue of a gender-based differential in student interest in athletics, the evidence was before the trier of fact and any error was, therefore, harmless. 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. Like other anti-discrimination statutory schemes, the Title IX regime permits affirmative action.11 In addition, Title IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the existence of discrimination. 44 Fed.Reg. 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. A school can satisfy the test in three ways. By Arthur Bryant and Lori Bullock* Cohen v. Brown University, which the First Circuit just referred to as "This landmark Title IX case," started in April 1992, after the school stopped funding its varsity women's gymnastics and volleyball teams.Eleven female athletes, including Amy Cohen, Megan Hull, Lisa Stern Kaplowitz, Eileen Rocchio, and Jennifer Todd, fought back. (internal citations omitted). This appeal followed. 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. at 3008. 92-2483. 1572, 55 L.Ed.2d 797 (1978) (summary affirmance of a district court decision upholding a provision of the Railroad Retirement Act that allowed women to retire at age 60 while men could not retire until age 65). at 27. Further, as the district court noted in its opinion after the trial on the merits, [n]othing in the record before me, now fully developed, undermines the considered legal framework established by the First Circuit at the preliminary injunction stage. Cohen III, 879 F.Supp. The district court noted that there may be other women's club sports with sufficient interest and ability to warrant elevation to varsity status, but that plaintiffs did not introduce at trial substantial evidence demonstrating the existence of other women's club teams meeting the criteria. The district court found Brown's plan to be fatally flawed for two reasons. at 2113. It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. 29. 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. 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). 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. As we have explained, Croson's factual concerns are not raised by a district court's determination-predicated upon duly adjudicated factual findings bearing multiple indicia of reliability and specificity-of gender discrimination in violation of a federal statute. 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. Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. It is clearly in the best interest of both the male and the female athletes to have an increase in women's opportunities and a small decrease in men's opportunities, if necessary, rather than, as under Brown's plan, no increase in women's opportunities and a large decrease in men's opportunities. at 1956. Amy Cohen (plaintiff), a member of the women's gymnastics team, and several other student-athletes filed suit against Brown alleging that the institution violated Title IX. This argument rests, in part, upon Brown's reading of 20 U.S.C. 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 515, ---------, 116 S.Ct. The number of participants in Brown's varsity athletic program accurately reflects the number of participation opportunities Brown offers because the University, through its practices predetermines the number of athletic positions available to each gender. The unprecedented success of these athletes is due, in no small measure, to Title IX's beneficent effects on women's sports, as the athletes themselves have acknowledged time and again. Compare Virginia, 518U.S. Benjamin D. Brown is a partner at Cohen Milstein and co-chair of the Antitrust practice group. a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . Our discussion in Cohen II also cited Califano v. Webster, 430 U.S. 313, 97 S.Ct. In concluding that the district court's interpretation and application of the three-part test creates a quota, Brown errs, in part, because it fails to recognize that (i) the substantial proportionality test of prong one is only the starting point, and not the conclusion, of the analysis; and (ii) prong three is not implicated unless a gender-based disparity with respect to athletics participation opportunities has been shown to exist. Thus, we have not construed the doctrine as an inflexible straitjacket that invariably requires rigid compliance. Northeast Utils. 328 women athletes. at 71,413. We emphasize that, on the facts of this case, Brown's lack-of-interest arguments are of no consequence. at 11. 101 F.3d 155 (1st Cir. at 2113. Id. This motion was filed by the original plaintiffs of Cohen v. In Adarand, the Supreme Court reasoned that it may not always be clear that a so-called preference is in fact benign. Id. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection of such teams is based upon competitive skill or the activity involved is a contact sport. and Tel. We think it important to bear in mind, however, the congressional concerns that inform the proper interpretation of this provision. at 1949 n. 2 (observing with respect to the relevance of the University of Chicago's statistical evidence regarding the small number of female applicants to its medical school, in comparison to male applicants, that the dampening impact of a discriminatory rule may undermine the relevance of figures relating to actual applicants). 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. After Cohen II, it cannot be maintained that the relative interests approach is compatible with Title IX's equal accommodation principle as it has been interpreted by this circuit. 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. Put another way, I agree that Title IX is not an affirmative action statute, id., but I believe that is exactly what the district court has made of it. At the time of trial, Brown offered 479 university-funded varsity positions for men, as compared to 312 for women; and 76 donor-funded varsity positions for men, as compared to 30 for women. As Brown puts it, [t]he [equal protection] violation arises from the court's holding that Title IX requires the imposition of quotas, preferential treatment, and disparate treatment in the absence of a compelling state interest and a determination that the remedial measure is narrowly tailored to serve that interest. Reply Br. at n. 1. The majority quotes approvingly from Cohen v. Brown Univ., 879 F.Supp. at 907, and makes it virtually impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. Ryan v. Royal Ins. As have a number of other circuits, we have determined that issues decided on appeal should not be reopened unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. Rivera-Martinez, 931 F.2d at 151 (quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967)) (other citations omitted). at ----, 116 S.Ct. 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. As was also the case under strict scrutiny review prior to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. Even a single person with a reasonable unmet interest defeats compliance. In all other respects the judgment of the district court is affirmed. 20 U.S.C. 3. at n. 41. 22. If so, the inquiry ends and Brown should be judged to be in compliance. at 200. at 71,416. 44 Fed.Reg. No tags have been applied so far. Brown maintains that the district court's decision imposes upon universities the obligation to engage in preferential treatment for women by requiring quotas in excess of women's relative interests and abilities. 2758, 65 L.Ed.2d 902 (1980) (upholding a federal program requiring state and local recipients of federal public works grants to set aside 10% of funds for procuring goods and services from minority business enterprises); United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. Furthermore, the majority recognizes that institutions are entitled to use any nondiscriminatory method of their choosing to determine athletic interests. 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