Ryan v. Royal Ins. The district court concluded, and the majority appears to agree, that Brown failed to satisfy prong two because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender. Majority Opinion at 166. No tags have been applied so far. We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. Cohen v. Brown University. Note that the focus is on the government's ability to favor women in this context, rather than on an important government objective, suggesting that the court considered the issue to be one of benign discrimination. at 2274, for this particular quota scheme. at 205. 1192, 51 L.Ed.2d 360 (1977) (sex)). It is obvious that Brown's plan was addressed to this court, rather than to offering a workable solution to a difficult problem. However, in Kelley, the Seventh Circuit, unlike the district court, did not use the three-prong test as a definitive test for liability. Id. 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. If a school, like Brown, eschews the first two benchmarks of the accommodation test, electing to stray from substantial proportionality and failing to march uninterruptedly in the direction of equal athletic opportunity, it must comply with the third benchmark. The prior panel held that [t]he fact that the overrepresented gender is less than fully accommodated will not, in and of itself, excuse a shortfall in the provision of opportunities for the underrepresented gender. Cohen II, 991 F.2d at 899. As previously noted, the district court held that, for purposes of the three-part test, the intercollegiate athletics participation opportunities offered by an institution are properly measured by counting the number of actual participants on intercollegiate teams. Accordingly, we have held that only a few exceptional circumstances can overcome the interests served by adherence to the doctrine and these exceptions are narrowly circumscribed. This is a curious result because the entire three-prong test is based on relative participation rates. See Adarand, 515 U.S. at ----, 115 S.Ct. 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. Id. 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. 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. First, the district court's interpretation creates a quota scheme. Specifically, Brown argues that the district court's interpretation and application of the test is irreconcilable with the statute, the regulation, and the agency's interpretation of the law, and effectively renders Title IX an affirmative action statute that mandates preferential treatment for women by imposing quotas in excess of women's relative interests and abilities in athletics. On these facts, Brown's failure to accommodate fully and effectively the interests and abilities of the underrepresented gender is clearly established. at 11. The refusal to accept surveys of interest levels as evidence of interest raises the question of what indicators might be used. 27. This extreme action is entirely unnecessary. In 1978, several years after the promulgation of the regulations, OCR published a proposed Policy Interpretation, the purpose of which was to clarify the obligations of federal aid recipients under Title IX to provide equal opportunities in athletics programs. 1681(a) (West 1990). 2721, 61 L.Ed.2d 480 (1979) (upholding a collective bargaining agreement that set aside for blacks half the places in a new training program until the percentage of blacks among skilled workers at the plant was commensurate with the percentage of blacks in the local labor force); Regents of the Univ. of Cal. 1419, ---------, 128 L.Ed.2d 89 (1994). at 2724 (holding that Title VII does not prohibit private employers from voluntarily implementing race-conscious measures to eliminate manifest racial imbalances in traditionally segregated job categories); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. denied, 510 U.S. 1004, 114 S.Ct. The prior panel upheld the district court's rulings in all respects save one. 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 . Citation. ), aff'd, 7 F.3d 332 (3d Cir.1993). at 194. A second Supreme Court case has also made it necessary to review our decision in Cohen II. 71,413-71,423 (1979). (iii) No additional discretionary funds will be used for athletics. 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 565, 110 S.Ct. In the first appeal, this court rejected Brown's Fifth Amendment equal protection challenge to the statutory scheme. We conclude that, even if it can be empirically demonstrated that, at a particular time, women have less interest in sports than do men, such evidence, standing alone, cannot justify providing fewer athletics opportunities for women than for men. at 189. 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. at 456, and the test applied in both Metro Broadcasting and Webster.The phrase exceedingly persuasive justification has been employed routinely by the Supreme Court in applying intermediate scrutiny to gender discrimination claims and is, in effect, a short-hand expression of the well-established test. The Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports. 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. After mapping Title IX's rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties' arguments, we affirm. In other words, the second prong also requires balancing. In so doing, we upheld the district court's analysis and ruled that an institution violates . . 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. Cohen II, 991 F.2d at 903. Corp., 74 F.3d 317, 322 (1st Cir.1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). See DeFord, supra, at 66. at 211. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). 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. Furthermore, the majority recognizes that institutions are entitled to use any nondiscriminatory method of their choosing to determine athletic interests. We find no error in the district court's refusal to apply Title VII standards in its inquiry into whether Brown's intercollegiate athletics program complies with Title IX. Another important distinction between this case and affirmative action cases is that the district court's remedy requiring Brown to accommodate fully and effectively the athletics interests and abilities of its women students does not raise the concerns underlying the Supreme Court's requirement of a particularized factual predicate to justify voluntary affirmative action plans. A viable tennis team may require only a single player. The email address cannot be subscribed. Get free access to the complete judgment in COHEN v. BROWN UNIVERSITY, (D.R.I. 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. This suit was initiated in response to the demotion in May 1991 of Brown's women's gymnastics and volleyball teams from university-funded varsity status to donor-funded varsity status. 2. 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. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.)). 7261(a)(1). The court found, however, that it is difficult for donor-funded varsity athletes to maintain a level of competitiveness commensurate with their abilities and that these athletes operate at a competitive disadvantage in comparison to university-funded varsity athletes. Cohen v. Brown Univ., 991 F.2d 888, 907 (1st Cir.1993) (Cohen II). Stay up-to-date with how the law affects your life. . at 188. See Cohen III, 879 F.Supp. ), cert. The Fullilove plurality inquired whether the objectives of th[e] legislation are within the power of Congress [] and whether the limited use of racial and ethnic criteria is a constitutionally permissible means for achieving the congressional objectives. 448 U.S. at 473, 100 S.Ct. Although Metro Broadcasting explicitly discussed race-conscious rather than gender-conscious classifications, we applied its standard in Cohen II. Snyder v. Turk: doctor shoved nurse into cavity . 2997, 111 L.Ed.2d 445 (1990) (race); Califano v. Webster, 430 U.S. 313, 97 S.Ct. at ----, 115 S.Ct. As a private institution that receives federal financial assistance, Brown is required to comply with Title IX. 1996) 101 F.3d 155, 179-180); WHEREAS, Through the enactment of Assembly Bill No . Benjamin D. Brown is a partner at Cohen Milstein and co-chair of the Antitrust practice group. at 3026 (emphasis added). 2097, 132 L.Ed.2d 158 (1995) ( Adarand), controls this case necessarily presumes that Adarand constitutes a contrary intervening decision by controlling authority on point that (i) undermines the validity of Cohen II; (ii) compels us to depart from the law of the case doctrine; and (iii) therefore mandates that we reexamine Brown's equal protection claim. 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. Virtually every other aspect of college life is entrusted to the institution, but athletics has now been carved out as an exception and the university is no longer in full control of its program. 1910, 1914, 100 L.Ed.2d 465 (1988); see also Mississippi Univ. The Court's 7-1 decision established the "separate but equal" doctrine. Modified Order of May 4, 1995. 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. But any such departure demands special justification.) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 24. Cohen II, 991 F.2d at 892 n. 2; Cohen I, 809 F.Supp. at 208. Being substantially related to an important government objective, therefore, is considered a necessary but not sufficient condition. 2462, 2590-92 (Additional Views); 117 Cong.Rec. denied, 459 U.S. 828, 103 S.Ct. 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. 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. Id. Sch. Section 1681(b) provides yet another reason why the district court's reading of prong three is troublesome and why Brown's reading is a reasonable alternative. 44 Fed.Reg. 1996) . 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 2275 (internal quotations omitted) (emphasis added). See Horner v. Kentucky High Sch. v. Alabama ex rel. Majority Opinion at 179 n. 15. 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. I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. at 1956. Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI. Thirty years ago, a group of female athletes sued Brown University in a landmark case (Cohen v.Brown University) that helped paved the way for women to gain equal footing with men in sports through Title IX.One of the plaintiffs was Lisa Kaplowitz, a 17-year-old star gymnast who testified about the opportunities she lost when the program was initially cut and the unfairness of that decision. This is a successful motion to enforce a 1998 court judgment against Brown University for violating Title IX. Cohen III, 879 F.Supp. 1681(b) (West 1990). of the Commonwealth Sys. A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under 38 U.S.C. As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. 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. The district court found Brown's plan to be fatally flawed for two reasons. (v) Brown will make explicit a de facto junior varsity team for women's field hockey. As to prong three, the district court found that Brown had not fully and effectively accommodated the interest and ability of the underrepresented sex to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes. Id. 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. To accomplish these objectives, Congress directed all agencies extending financial assistance to educational institutions to develop procedures for terminating financial assistance to institutions that violate Title IX. 1681, et seq. 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. See Miller v. Johnson, 515 U.S. 900, ----, 115 S.Ct. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. 1211, 1221-22, 79 L.Ed.2d 516 (1984) (holding that Title IX was program-specific and thus applied only to those university programs that actually receive federal funds and not to the rest of the university), with athletics prominently in mind. Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. Based on the facts of this case, the Court holds that . 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. 328 women athletes. at 1001, will remain in effect pending a final remedial order. If so, the inquiry ends and Brown should be judged to be in compliance. Id. This relative interests approach posits that an institution satisfies prong three of the three-part test by meeting the interests and abilities of the underrepresented gender only to the extent that it meets the interests and abilities of the overrepresented gender.13 See Cohen II, 991 F.2d at 899. [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. at 71,413 n. 1. The case is now before us on appeal from the merits and we must review it accordingly. 44 Fed.Reg. 28. While some gender-conscious relief may adversely impact one gender-a fact that has not been demonstrated in this case-that alone would not make the relief affirmative action or the consequence of that relief reverse discrimination. To the contrary, race- and gender-conscious remedies are both appropriate and constitutionally permissible under a federal anti-discrimination regime, although such remedial measures are still subject to equal protection review. The district court concluded that intercollegiate athletics opportunities means real opportunities, not illusory ones, and therefore should be measured by counting actual participants. Id. Furthermore, such evidence is completely irrelevant where, as here, viable and successful women's varsity teams have been demoted or eliminated. 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. 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. Brown therefore should be afforded the opportunity to submit another plan for compliance with Title IX. The University has agreed to pay over $1.13 million in attorney's fees and $40,000 in litigation costs to the plaintiffs of Cohen v. Brown University following a Tuesday order by U.S. District Court Chief Judge John McConnell, according to court documents from the U.S. District Court for the District of Rhode Island. In criticizing another facet of Brown's plan, the district court pointed out that. 1681(b). 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. In the spring of 1991, Brown announced that it, like many other schools, was in a financial bind, and that, as a belt-tightening measure, it planned to drop four sports from its . 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. See H.R.Rep. We find no error in the district court's factual findings or in its interpretation and application of the law in determining that Brown violated Title IX in the operation of its intercollegiate athletics program. We find that the first part of the test is satisfied. at 314-16, 97 S.Ct. Brown's interpretation conflates prongs one and three and distorts the three-part test by reducing it to an abstract, mechanical determination of strict numerical proportionality. [a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are benign or remedial and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. at 3336; J.E.B. In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. 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