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.). The district court also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams were established before 1927, virtually all of the women's varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. First, the substantive issues have been decided adversely to Brown. 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. Id. 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. The concern informing this caveat arises when we are asked to rule on the propriety of a district court's grant of a preliminary injunction (or otherwise issue a preliminary ruling) without benefit of full argument and a well-developed record. 1764, 1769-70, 36 L.Ed.2d 583 (1973). After all, the district court itself stated that one of the compliance options available to Brown under Title IX is to demote or eliminate the requisite number of men's positions. Cohen III, 879 F.Supp. See Clarification Memorandum at 2 (In determining participation opportunities, OCR counts the number of actual athletes participating in the athletic program.). 28. 1B Moore at 0.404[1]. 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. Appellee's Br. The prior panel, like Brown, assumed without analysis that 1681(b) applies unequivocally to intercollegiate athletics programs. 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. The governmental objectives of avoid[ing] the use of federal resources to support discriminatory practices, and provid[ing] individual citizens effective protection against those practices, Cannon, 441 U.S. at 704, 99 S.Ct. 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. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. Agency responsibility for administration of Title IX shifted from the Department of Health, Education and Welfare (HEW) to DED when HEW split into two agencies, DED and the Department of Health and Human Services. . As noted previously, Croson is an affirmative action case and does not control review of a judicial determination that a federal anti-discrimination statute has been violated. 4. Additionally, the Supreme Court endorsed the view that. It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. Bernier v. Boston Edison Co.: bad driver lady crashed into bad . at 319, 97 S.Ct. For simplicity, we treat DED as the promulgating agency. Appellee's Br. Thus, we have not construed the doctrine as an inflexible straitjacket that invariably requires rigid compliance. Northeast Utils. As previously noted, Cohen II expressly held that a court assessing Title IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution's student constituency, on the one hand, and its athletic programs, on the other hand. 991 F.2d at 895. In Cohen I, 991 F.2d 888, the "watershed" case involving Title IX and university athletics, Brown University appealed from the district court's issuance of a preliminary injunction ordering Brown to reinstate its women's gymnastics and volleyball programs, pending the resolution of the plaintiffs' claim that the proposed cutbacks violated Title IX. 1681-1688 (Title IX), and its implementing regulations, 34 C.F.R. 578, 584 (W.D.Pa. One need look no further than the impressive performances of our country's women athletes in the 1996 Olympic Summer Games to see that Title IX has had a dramatic and positive impact on the capabilities of our women athletes, particularly in team sports. In order to bring Brown into compliance with prong one under defendants' Phase II, I would have to order Brown to cut enough men's teams to eradicate approximately 213 men's varsity positions. It seems to me that a quota with an exception for situations in which there are insufficient interested students to allow the school to meet it remains a quota. Brown merely asserts, however, that the study was admissible under Rule 803, id. 29. While affirmative action may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. 1842, 90 L.Ed.2d 260 (1986) (striking down a collective-bargaining faculty lay-off provision requiring preferential treatment for certain racial minorities); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. Filed: 1993-04-16 Precedential Status: Precedential Citations: 991 F.2d 888 Docket: 92-2483 684, 121 L.Ed.2d 605 (1993); Young v. Herring, 917 F.2d 858 (5th Cir.1990); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.1981), cert. Extremely Persuasive Justification Test. Based on the facts of this case, the Court holds that . 19 (2022), the Massachusetts Supreme Judicial . at 565, 110 S.Ct. 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 55. 1681(a) (West 1990). Cohen II, 991 F.2d at 903. at ----, 115 S.Ct. 1681(b). Specifically, with respect to Title IX's guarantee that no person shall be excluded on the basis of sex 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. of Educ., 476 U.S. 267, 106 S.Ct. 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. Finding Brown's bare assertions to be unpersuasive, we decline the invitation to this court to change its mind. The precedent established by the prior panel is not clearly erroneous; it is the law of this case and the law of this circuit. 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. Since the applicable regulation, 34 C.F.R. Cf. The district court's definition of athletics participation opportunities comports with the agency's own definition. 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. Cohen III, 879 F.Supp. [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. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny . 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. As the prior panel recognized, while the question of full and effective accommodation of athletics interests and abilities is potentially a complicated issue where plaintiffs seek to create a new team or to elevate to varsity status a team that has never competed at the varsity level, no such difficulty is presented here, where plaintiffs seek to reinstate what were successful university-funded teams right up until the moment the teams were demoted.16 Cohen II, 991 F.2d at 904; see also Cohen I, 809 F.Supp. Although the three-prong test, even as interpreted by the district court, appears to allow the school the opportunity to show a lack of interest, the majority rejects the best-and perhaps the only-mechanism for making such a showing. See Horner v. Kentucky High Sch. 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). Brown's relative interests approach is not a reasonable interpretation of the three-part test. 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. 706, 102 L.Ed.2d 854, the Court applied strict scrutiny in striking down a municipal minority set-aside program for city construction contracts. These teams included 479 men and 312 women. 1993) Rule: A district court, faced with a motion for preliminary injunction, must assess the request in four particular ways, evaluating: (1) the movant's probability of victory on the merits; (2) the potential for irreparable harm if the injunction is refused; (3) the balance of interests as between the parties, i.e . 5804 (1972) (remarks of Sen. Bayh); North Haven Bd. 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. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. Plaintiff: Amy Cohen and other members of the gymnastics team as well as member of the women's volleyball team. Similarly, the district court's interpretation requires the school to accommodate the interests of every female student until proportionality is reached. of Pa., 7 F.3d 332 (3d Cir.1993); Roberts v. Colorado State Bd. 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. For the purposes of this appeal, we must review findings of fact under a clearly erroneous standard, Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1069 (1st Cir.1995) and findings of law de novo, Portsmouth v. Schlesinger, 57 F.3d 12, 14 (1st Cir.1995). denied, 513 U.S. 1025, 115 S.Ct. 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. (quoting the Policy Interpretation, 44 Fed.Reg. The district court's interpretation of prongs one and three creates an Equal Protection problem, which I analyze in two steps. 2297, 2303, 124 L.Ed.2d 586 (1993)). During the same period, Brown's undergraduate enrollment comprised 5,722 students, of which 48.86% (2,796) were men and 51.14% (2,926) were women. EPA questioned the petitioners' standing to invoke the court's jurisdiction under Article III. 1392, 99 L.Ed.2d 645 (1988); see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. See Missouri v. Jenkins, 515 U.S. 70, ----, 115 S.Ct. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. 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. This conclusion is consistent with Cohen II, which states that a school may achieve compliance by reducing opportunities for the overrepresented gender. Also consistent with the school desegregation cases, the substantial proportionality test of prong one is applied under the Title IX framework, not mechanically, but case-by-case, in a fact-specific manner. 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. By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. 11. The Court's 7-1 decision established the "separate but equal" doctrine. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Second, even assuming such a quota scheme is otherwise constitutional, appellees have not pointed to an exceedingly persuasive justification, see Virginia, 518 U.S. at ----, 116 S.Ct. at ----, 115 S.Ct. Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. at 1848. 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. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . The majority is unsympathetic to Brown's claim that the disparity between athletic opportunities for men and women reflect a gender-based difference in interest levels. at 214. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. 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). at 71,413. 3331, 3336-37, 73 L.Ed.2d 1090 (1982); Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. In view of the quota scheme adopted by the district court, and Congress' specific disavowal of any intent to require quotas as part of Title IX, appellees have not met their burden of showing an exceedingly persuasive justification for this gender-conscious exercise of government authority. E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. 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. (3)Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. Brown's efforts to circumvent the controlling effect of Cohen II are unavailing, however, because, under the law of the case doctrine, we are bound in this appeal, as was the district court on remand, by the prior panel's rulings of law.
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