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. This approach contravenes the purpose of the statute and the regulation because it does not permit an institution or a district court to remedy a gender-based disparity in athletics participation opportunities. 44 Fed.Reg. of Med., 976 F.2d 791, 795 (1st Cir.1992), cert. In our view, it is Brown's relative interests approach to the three-part test, rather than the district court's interpretation, that contravenes the language and purpose of the test and of the statute itself. It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. The original Cohen case was settled in 1998 by Joint Agreement. 1681-1688 (1988) ("Title IX"). 24. To the extent that the rate of interest in athletics diverges between men and women at any institution, the district court's interpretation would require that such an institution treat an individual male student's athletic interest and an individual female student's athletic interest completely differently: one student's reasonable interest would have to be met, by law, while meeting the other student's interest would only aggravate the lack of proportionality giving rise to the legal duty. Id. Id. 1912, 1919 n. 13, 72 L.Ed.2d 299 (1982). Id. 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. 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. 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. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . at 3336. (quoting the Policy Interpretation, 44 Fed.Reg. 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. at 192. 2264, 2274, 2277, 135 L.Ed.2d 735 (1996) (viewing Virginia's benign justification for a gender classification skeptically); Shuford v. Alabama State Bd. ), aff'd, 7 F.3d 332 (3d Cir.1993). at 1848, on the basis of facts insufficient to support a prima facie case of a constitutional or statutory violation, Croson, 488 U.S. at 500, 109 S.Ct. Prong one, for example, requires that participation opportunities be provided proportionately to enrollment, but does not mandate any absolute number of such opportunities. Thus, Title IX and Title VI share the same constitutional underpinnings. at 214. On these facts, Brown's failure to accommodate fully and effectively the interests and abilities of the underrepresented gender is clearly established. To adopt the relative interests approach would be, not only to overrule Cohen II, but to rewrite the enforcing agency's interpretation of its own regulation so as to incorporate an entirely different standard for Title IX compliance. 26. I fail to see how these statements can be reconciled with the claim that Brown cannot satisfy prong two by reducing the number of participation opportunities for men. Cohen II, 991 F.2d at 892 n. 2; Cohen I, 809 F.Supp. 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. 106.37(c) and 106.41(c)]. 44 Fed.Reg. I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. at 2104 (quoting Northeastern Fla. Chapter, Assoc'd Gen'l Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. After considering a large number of public comments, OCR published the final Policy Interpretation. 19. docx.docx from POLI 212 at Walden University. at 64-66, 71-73, 112 S.Ct. Id. 6. What is important for our purposes is that the Supreme Court appears to have elevated the test applicable to sex discrimination cases to require an exceedingly persuasive justification. This is evident from the language of both the majority opinion and the dissent in Virginia. The Policy Interpretation states that its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulation. 44 Fed.Reg. Virginia drastically revise[d] our established standards for reviewing sex-based classifications. Id. denied, 516 U.S. 1159, 116 S.Ct. at 55. See Adarand, 515 U.S. 200, 115 S.Ct. First, Califano did not necessarily rule on benign classifications, as Metro Broadcasting and Adarand clearly did. 1028, 1038, 117 L.Ed.2d 208 (1992). 20 U.S.C. Id. 978 (D.R.I. 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. 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. Id. 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. THE PLAINTIFF CLASS. 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. The doctrine requires a trial court on remand to dispose of the case in accordance with the appellate court's mandate by implementing both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces, United States v. Connell, 6 F.3d 27, 30 (1st Cir.1993) (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991)), and binds newly constituted panels to prior panel decisions on point, e.g., Irving v. United States, 49 F.3d 830, 833-34 (1st Cir.1995); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935, 939 n. 3 (1st Cir.1993). 938, 130 L.Ed.2d 883 (1995); Favia v. Indiana Univ. The District Court's Interpretation and the Resulting Equal Protection Problem. at 211. at 71,418, in which case the compliance inquiry ends without reaching prong three. 30. Rather than respecting the school's right to determine the role athletics will play in the future-including reducing the opportunities available to the formerly overrepresented gender to ensure proportionate opportunities-the district court and the majority demand that the absolute number of opportunities provided to the underrepresented gender be increased. Here, Brown argues that its challenge is to the decision of the district court. Cohen v. Brown University, Court Case No. 2282, 2293, 60 L.Ed.2d 870 (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. Neither this court nor the Supreme Court has drawn this distinction in the context of gender discrimination claims or held that a less stringent standard applies in cases involving benign, rather than invidious, gender discrimination. Compare Virginia, 518U.S. As the Kelley Court pointed out (in the context of analyzing the deference due the relevant athletics regulation and the Policy Interpretation): Undoubtedly the agency responsible for enforcement of the statute could have required schools to sponsor a women's program for every men's program offered and vice versa It was not unreasonable, however, for the agency to reject this course of action. 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. at 901 (citing Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. Finally, it is important to remember that Brown University is a private institution with a constitutionally protected First Amendment right to choose its curriculum. 71,413, 71,418 (December 11, 1979). of Educ., 402 U.S. 1, 25, 91 S.Ct. 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. 21. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. 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. See 44 Fed.Reg. 118 Cong.Rec. Accordingly, even assuming that the three-part test creates a gender classification that favors women, allowing consideration of gender in determining the remedy for a Title IX violation serves the important objective of ensur[ing] that in instances where overall athletic opportunities decrease, the actual opportunities available to the underrepresented gender do not. Kelley, 35 F.3d at 272. Second, the standard of review has changed. Moreover, Webster, which Cohen II cited along with Metro Broadcasting, was not overruled or in any way rendered suspect by Adarand. See Missouri v. Jenkins, 515 U.S. 70, ----, 115 S.Ct. [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. This is not just a matter of semantics. In computing these figures, the district court counted as participants in intercollegiate athletics for purposes of Title IX analysis those athletes who were members of varsity teams for the majority of the last complete season. at 541). It is well settled that the reach of the equal protection guarantee of the Fifth Amendment Due Process Clause-the basis for Brown's equal protection claim-is coextensive with that of the Fourteenth Amendment Equal Protection Clause. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II), the standard intermediate scrutiny test for discriminatory classifications based on sex required that a statutory classification must be substantially related to an important government objective. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. See Personnel Adm'r v. Feeney, 442 U.S. 256, 273, 99 S.Ct. Brown v. Board of Education, 347 U.S. 483 (1954) - Amicus curiae for Oliver Brown; . 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. 398. This action was taken to ensure that the Order was final for purposes of this court's jurisdiction, and to expedite the appeal process. 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. 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. 978, 1001 (D.R.I.1992) (Cohen I). A pragmatic overview of the effect of the three-prong test leads me to reject the majority's claim that the three-prong test does not amount to a quota because it involves multiple prongs. 93-380, 88 Stat. 3331, 3336-37, 73 L.Ed.2d 1090 (1982); Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. Law School Case Brief; Cohen v. Brown Univ. In 1996, the ACLU filed a "friend of the court" brief in support of a challenge to Brown University's athletic program as discriminating on the basis of gender - in violation of Title IX. 1681(a) (West 1990). 20. This precedent-setting ruling, which set the standard for determining a school's compliance with Title IX in . 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). Bernier v. Boston Edison Co.: bad driver lady crashed into bad . 2264, 2274-76, 135 L.Ed.2d 735 (1996) (applying Equal Protection review to gender-based government action where Commonwealth of Virginia attempted to maintain two purportedly equal single-sex institutions). First, the district court's interpretation creates a quota scheme. 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. Where such a disparity has been established, the inquiry under prong three is whether the athletics interests and abilities of the underrepresented gender are fully and effectively accommodated, such that the institution may be found to comply with Title IX, notwithstanding the disparity.23. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. 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. We note that Brown presses its relative interests argument under both prong one and prong three. District Court Order at 5-6. T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. at 3338 (In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.). Section 1681(b) provides: Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area. 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. Majority Opinion at 185 (quoting Cohen III). 1681(a). Appellee's Br. (iii) No additional discretionary funds will be used for athletics. For clarification, we note that the cases refer to each part of this three-part test as a prong or a benchmark. Prong one is also called the substantial proportionality test.. 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. Inc. v. Pena, 515 U.S. 200, ----, 115 S.Ct. Indeed, Brown argues as if the prior panel had not decided the precise statutory interpretation questions presented (which it clearly did) and as if the district court's liability analysis were contrary to the law enunciated in Cohen II (which it clearly is not). If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test. Id. Id. First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. Cohen III, 879 F.Supp. From the mere fact that a remedy flowing from a judicial determination of discrimination is gender-conscious, it does not follow that the remedy constitutes affirmative action. Nor does a reverse discrimination claim arise every time an anti-discrimination statute is enforced. at 188 n. 4. In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. 554, 92d Cong., 1st Sess. No. 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. We emphasize two points at the outset. To the extent that Brown challenges the constitutionality of the statutory scheme itself, the challenge rests upon at least two erroneous assumptions: first, that Adarand is controlling authority on point that compels us, not only to consider Brown's constitutional challenge anew, but also to apply strict scrutiny to the analysis; second, that the district court's application of the law in its liability analysis on remand is inconsistent with the interpretation expounded in the prior appeal. In that case, Congress specifically found that more frequent and lower age limits were being applied to women than to men in the labor market. 1053, 94 L.Ed.2d 203 (1987) (upholding a one-black-for-one-white promotion requirement ordered by a district court as an interim measure in response to proven discrimination by a state employer); Local 28 ofSheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct. I am not persuaded by the majority's argument that the three-part test does not constitute a quota because it does not permit an agency or court to find a violation solely on the basis of prong one of the test; instead, an institution must also fail prongs two and three. Id. 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. 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. Title IX was passed with two objectives in mind: to avoid the use of federal resources to support discriminatory practices, and to provide individual citizens effective protection against those practices. Cannon v. University of Chicago, 441 U.S. 677, 704, 99 S.Ct. at 25; (iii) other programs indicative of interests and abilities, such as club and intramural sports, sports programs at feeder schools, community and regional sports programs, and physical education classes, id.As the district court noted, however, the agency characterizes surveys as a simple way to identify which additional sports might appropriately be created to achieve compliance Thus, a survey of interests would follow a determination that an institution does not satisfy prong three; it would not be utilized to make that determination in the first instance. Cohen III, 879 F.Supp. supra; Heuer v. Brown, 7 Vet.App. Id. The test applied by the court was based on (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 and (4) the public interest. Id. at 896-97; and that, [b]ecause the agency's rendition stands upon a plausible, if not inevitable, reading of Title IX, we are obligated to enforce the regulation according to its tenor, id. Brown University's main campus Credit: Kylie Cooper A group of students on women's athletic teams filed a motion against Brown in 2020 after the university demoted multiple women's varsity teams to club teams, according to a press release from the American Civil Liberties Union of Rhode Island. 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. 2000d (Title VI).8 See Cannon, 441 U.S. at 696, 99 S.Ct. Co. of Am., 94 F.3d 26, 28 (1st Cir.1996). That case concerned Congress' provision, under the Social Security Act, for a lower retirement age for women than for men, with the result that, as between similarly situated male and female wage-earners, the female wage-earner would be awarded higher monthly social security payments, id. The individual defendants are, respectively, the President and Athletic Director of the University. 1946, 1961, 60 L.Ed.2d 560 (1979). Citation. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny . at 71,418). Get free access to the complete judgment in COHEN v. BROWN UNIVERSITY, (D.R.I. Section 1681(b) was patterned after 703(j) of Title VII, 42 U.S.C. 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. 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. Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI. at 71,418. District Court Order at 6 (footnote omitted). at n. 41. 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. Accordingly, the district court found that Brown maintained a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, id. 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 23. 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. Education, 347 U.S. 483 ( 1954 ) - Amicus curiae for Brown... Three-Part test as a prong or a benchmark every time an anti-discrimination,. Its decision in Cohen II, 991 F.2d at 892 n. 2 ; I. Because the school is forced to admit every female applicant until it reaches requisite. Citing Metro Broadcasting, was not overruled or in any way rendered suspect by Adarand additional discretionary will! 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