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. 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. at 204, 97 S.Ct. Brown's decision to demote the women's volleyball and gymnastics teams and the men's water polo and golf teams from university-funded varsity status was apparently made in response to a university-wide cost-cutting directive. 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. 10. See H.R.Rep. Cohen II, 991 F.2d at 906; Villanueva, 930 F.2d at 129. Under the Policy Interpretation,Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided:a. 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. Cohen II squarely rejected Brown's interpretation of the three-part test and carefully delineated its own, which is now the law of this circuit as well as the law of this case. 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 . 2003) on CaseMine. Brown argues that the district court's interpretation of the three-part test requires numerical proportionality, thus imposing a gender-based quota scheme in contravention of the statute. at 214. at 71,413 n. 1. Indeed, despite Brown's attempt to present evidence in support of its claim, the majority characterizes Brown's argument as an unproven assertion. Majority Opinion at 178.30. Learn more about FindLaws newsletters, including our terms of use and privacy policy. at 898. In Cohen II, a panel of this court squarely rejected Brown's constitutional and statutory challenges to the Policy Interpretation's three-part test, upholding the district court's interpretation of the Title IX framework applicable to intercollegiate athletics, Cohen II, 991 F.2d at 899-902, as well as its grant of a preliminary injunction in favor of the plaintiffs, id. 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. Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. Cohen II, 991 F.2d at 892 n. 2; Cohen I, 809 F.Supp. Comm'n, 463 U.S. 582, 103 S.Ct. at 3008-10 (for the proposition that Congress need not make specific findings of discrimination to grant race-conscious relief), and Califano v. Webster, 430 U.S. at 317, 97 S.Ct. While this case presents only the example of members of the underrepresented gender seeking the opportunity to participate on single-sex teams, the same analysis would apply where members of the underrepresented gender sought opportunities to play on co-ed teams. . 2264, 135 L.Ed.2d 735 (1996) ( Virginia); see id. Brown merely asserts, however, that the study was admissible under Rule 803, id. 5. 1681(b) (West 1990). at 981. See, e.g., United States v. Paradise, 480 U.S. 149, 107 S.Ct. 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. Brown impliedly assumes that Adarand' s partial overruling of Metro Broadcasting invalidates the prior panel's disposition of Brown's equal protection challenge by virtue of its passing citation to Metro Broadcasting. 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. The problem with the majority's argument can be illustrated with a hypothetical college admissions policy that would require proportionality between the gender ratio of the local student aged population and that of admitted students. As a Division I institution within the National Collegiate Athletic Association (NCAA) with respect to all sports but football, Brown participates at the highest level of NCAA competition.2 Cohen III, 879 F.Supp. That notwithstanding, where-as here-the resulting regulation is susceptible to more than one reasonable interpretation, we owe no such deference to the interpretation chosen where the choice is made not by the agency but by the district court. at 3008. at 981. at 2275 (internal quotations omitted) (emphasis added). 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. A university does not treat its men's and women's teams equally if it allows the coaches of men's teams to set their own maximum capacity limits but overrides the judgment of coaches of women's teams on the same matter. The district court found that the women's gymnastics team had won the Ivy League championship in 1989-90 and was a thriving university-funded varsity team prior to the 1991 demotion; that the donor-funded women's fencing team had been successful for many years and that its request to be upgraded to varsity status had been supported by the athletics director at the time; that the donor-funded women's ski team had been consistently competitive despite a meager budget; and that the club-status women's water polo team had demonstrated the interest and ability to compete at full varsity status. 6. The regulation, therefore, allows schools to operate single-sex teams in contact sports. Majority Opinion at 185 (quoting Cohen III). By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. The Metro Broadcasting Court distinguished Croson, noting that [i]n fact, much of the language and reasoning in Croson reaffirmed the lesson of Fullilove18 that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments. Metro Broadcasting, 497 U.S. at 565, 110 S.Ct. Id. at 907, and makes it virtually impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. 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. 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. 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. Both doctrines reflect concerns that have long been recognized as fundamentally important to the rule of law-e.g., stability, predictability, and respect for judicial authority-and both doctrines are applied with more or less rigidity depending on which interest is served. Id. Co. of Am., 94 F.3d 26, 28 (1st Cir.1996). at 71,416. In addition to the above reasons for considering the merits of this appeal, it is important to note that Cohen II was an appeal from a preliminary injunction. at 2726-27 (construing the prohibition against race discrimination contained in 703(a) and (d) of Title VII, and concluding that an interpretation of the sections that forbade all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected) (internal quotation marks and citations omitted); id. Co., 41 F.3d at 770 (citing 1B Moore at 0.404[10]). The plan sets forth nine steps for its implementation, id. 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. However, in Kelley, the Seventh Circuit, unlike the district court, did not use the three-prong test as a definitive test for liability. While this court has approved the importation of Title VII standards into Title IX analysis, we have explicitly limited the crossover to the employment context. 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. Two schools declined to include Brown in future varsity schedules when women's volleyball was demoted to donor-funded status. I believe that the three prong test, as the district court interprets it, is a quota. Id. As Brown rightly argues, the district court's application of the three-prong test requires Brown to allocate its athletic resources to meet the as-yet-unmet interest of a member of the underrepresented sex, women in this case, while simultaneously neglecting any unmet interest among individuals of the overrepresented sex. at 897. 1681(a) (1988). 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. See 44 Fed.Reg. docx.docx from POLI 212 at Walden University. Brown University, as an Ivy League institution, does not grant athletic scholarships to its students. 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. 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. Additionally, the Supreme Court endorsed the view that. See Horner v. Kentucky High Sch. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. 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. A school can satisfy the test in three ways. 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. As interpreted by the district court, the test constitutes an affirmative action, quota-based scheme. To the extent that Brown assumes that Croson governs the issue of the sufficiency of the factual predicate required to uphold a federally mandated, benign race- or gender-based classification, that assumption is also unfounded. 44 Fed.Reg. In contrast to the employment and admissions contexts, in the athletics context, gender is not an irrelevant characteristic. In so doing, we upheld the district court's analysis and ruled that an institution violates . 1946, 1961, 60 L.Ed.2d 560 (1979). This difficulty was recognized in Cohen II, which stated that the mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team in order to comply with the third benchmark. Cohen II 991 F.2d at 898. Brown contends that an athletics program equally accommodates both genders and complies with Title IX if it accommodates the relative interests and abilities of its male and female students. The Court has been especially critical of the use of statistical evidence offered to prove generalized, stereotypical notions about men and women. Plaintiff: Amy Cohen and other members of the gymnastics team as well as member of the women's volleyball team. 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. 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). 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. 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. 106.41(c)(1), the first of the non-exhaustive list of ten factors to be considered in determining whether equal athletics opportunities are available to both genders. It does not follow from the fact that 1681(b) was patterned after a Title VII provision that Title VII standards should be applied to a Title IX analysis of whether an intercollegiate athletics program equally accommodates both genders, as Brown contends. 1910, 1914, 100 L.Ed.2d 465 (1988); see also Mississippi Univ. at 1846-47. 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. Brown's relative interests approach is not a reasonable interpretation of the three-part test. 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. We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny . Stay up-to-date with how the law affects your life. In all other respects the judgment of the district court is affirmed. 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). at 8-9 n. 2 (While [other] indications of interest may be helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indicia[,] an institution is expected to meet the actual interests and abilities of its students and admitted students.). The case is now before us on appeal from the merits and we must review it accordingly. at II-2. This requirement presents a dilemma for a school in which women are less interested in athletics, as Brown contends is the case. Id. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th Cir.) 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. Irving, 49 F.3d at 834. Cf. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. - 991 F.2d 888 (1st Cir. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. All rights reserved. at 19-20. Cohen, et al v Walsh, et al | 21-1032 | Court Records - UniCourt The logic of this position escapes me. Horner, 43 F.3d at 273 n. 6 (citing Cohen v. Brown Univ., 991 F.2d 888, 896 n. 10 (1st Cir.1993)). at 706; Wygant, 476 U.S. at 276, 106 S.Ct. v. Alabama ex rel. 1681(b). denied, 459 U.S. 828, 103 S.Ct. 106.41(c)(1). Thus, at the heart of this litigation is the question whether Title IX permits Brown to deny its female students equal opportunity to participate in sports, based upon its unproven assertion that the district court's finding of a significant disparity in athletics opportunities for male and female students reflects, not discrimination in Brown's intercollegiate athletics program, but a lack of interest on the part of its female students that is unrelated to a lack of opportunities. Under intermediate scrutiny, the burden of demonstrating an exceedingly persuasive justification for a government-imposed, gender-conscious classification is met by showing that the classification serves important governmental objectives, and that the means employed are substantially related to the achievement of those objectives. Each prong of the Policy Interpretation's three-part test determines compliance in this manner. at 1848. at 6. 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. Cohen v. Brown University 1st Circuit Court of Appeals 991 F.2d 888 (1st Cir. Indeed, every circuit court to have reviewed a Title IX claim of discrimination in athletics since Cohen II was decided is in accord with its explication of the Title IX regime as it applies to athletics. at 2113. 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.
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