E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. We reject Brown's kitchen-sink characterization of the Policy Interpretation and its challenge to the substantial deference accorded that document by the district court. B. 1681(a) (1988). 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 . As to the propriety of Brown's proposal to come into compliance by the addition of junior varsity positions, the district court held: Positions on distinct junior varsity squads do not qualify as intercollegiate competition opportunities under the Policy Interpretation and should not be included in defendants' plan. at 71,415. (Cohen v. Brown University, (1st Cir. See Clarification Memorandum at 8 (If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability or available competition no longer exists.); id. at 212, is clearly correct. 1681-1688, provides that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. What stimulated this remarkable change in the quality of women's athletic competition was not a sudden, anomalous upsurge in women's interest in sports, but the enforcement of Title IX's mandate of gender equity in sports. See Adarand, 515 U.S. 200, 115 S.Ct. Similarly, the district court's interpretation requires the school to accommodate the interests of every female student until proportionality is reached. Id. Under Brown's interpretation of the three-part test, there can never be a remedy for a violation of Title IX's equal opportunity mandate. 5807 (1972) (statement of Sen. Bayh); 117 Cong.Rec. Irving, 49 F.3d at 834. Nor did Brown satisfy prong two. Here, gender-conscious relief was ordered by an Article III court, constitutionally compelled to have before it litigants with standing to raise the cause of action alleged; for the purpose of providing relief upon a duly adjudicated determination that specific defendants had discriminated against a certified class of women in violation of a federal anti-discrimination statute; based upon findings of fact that were subject to the Federal Rules of Evidence. at 895. 3331, 3335-36 and n. 9, 73 L.Ed.2d 1090 (1982); Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. Brown, on the other hand, argues that prong three is satisfied when (1) the interests and abilities of members of the proportionately underrepresented gender (2) are accommodated to the same degree as the proportionately overrepresented gender. 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. Courts and institutions must have some way of determining whether an institution complies with the mandate of Title IX and its supporting regulations to provide equal athletics opportunities for both genders, despite the fact that the institution maintains single-sex teams, and some way of fashioning a remedy upon a determination that the institution does not equally and effectively accommodate the interests and abilities of both genders. . 706, 102 L.Ed.2d 854, the Court applied strict scrutiny in striking down a municipal minority set-aside program for city construction contracts. 106.3, and by the Policy Interpretation, 44 Fed.Reg. Under the district court's interpretation, a school facing budgetary constraints must, in order to comply with prong two, increase the opportunities available to the underrepresented gender, even if it cannot afford to do so. In order to finance the 40 additional women's positions, Brown certainly will not have to eliminate as many as the 213 men's positions that would be cut under Brown's Phase II proposal. No costs on appeal to either party. 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. Comm'n, 463 U.S. 582, 103 S.Ct. See Miller, 515 U.S. at ----, 115 S.Ct. Cohen v. Brown University, Court Case No. Accordingly, the Court has taken the position that voluntary affirmative action plans cannot be constitutionally justified absent a particularized factual predicate demonstrating the existence of identified discrimination, see Croson, 488 U.S. at 500-06, 109 S.Ct. The majority quotes approvingly from Cohen v. Brown Univ., 879 F.Supp. These teams included 479 men and 312 women. Under Cohen II's controlling interpretation, prong three demands not merely some accommodation, but full and effective accommodation. No. at 15, because the urged interpretation is illogical, conflicts with the Constitution, the Statute, the Regulation, other Agency materials and practices, existing analogous caselaw and, in addition, is bad policy, id. 2755, 2762-63, 49 L.Ed.2d 651 (1976). at 2275 (internal quotations omitted) (emphasis added). E.g., Hogan, 458 U.S. at 724, 102 S.Ct. 1681(b). The court's remedial order required Brown to elevate and maintain at university-funded varsity status the women's gymnastics, fencing, skiing, and water polo teams. This relative interests standard would entrench and fix by law the significant gender-based disparity in athletics opportunities found by the district court to exist at Brown, a finding we have held to be not clearly erroneous. at 194-95 n. 23. at 1848. The district court's interpretation of prongs one and three creates an Equal Protection problem, which I analyze in two steps. 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. The regulation at issue in this case, 34 C.F.R. 549 U.S 497 (2007) Brief Fact Summary. at 1193-94. See Adarand, 515 U.S. at ----, 115 S.Ct. The district court's narrow, literal interpretation should be rejected because prong three cannot be read in isolation. Cohen I - Plaintiffs asked for a preliminary injunction that would require Brown to fund the women's teams and refrain from further reductions in direct funding for women's teams until the case could be heard. The prior panel, like Brown, assumed without analysis that 1681(b) applies unequivocally to intercollegiate athletics programs. 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). The easy answer lies in ordering Brown to comply with prong three by upgrading the women's gymnastics, fencing, skiing, and water polo teams to university-funded varsity status. Partially as a consequence of this, participation rates of women are far below those of men.). I recognize the financial constraints Brown faces; however, its own priorities will necessarily determine the path to compliance it elects to take. The refusal to accept surveys of interest levels as evidence of interest raises the question of what indicators might be used. The District Court's Interpretation and the Resulting Equal Protection Problem. at 314-16, 97 S.Ct. Cohen II, 991 F.2d at 903. Brown merely asserts, however, that the study was admissible under Rule 803, id. 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. In short, Brown treats the three-part test for compliance as a one-part test for strict liability. 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. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. In rejecting Brown's equal protection claim, the Cohen II panel stated, It is clear that Congress has broad powers under the Fifth Amendment to remedy past discrimination. 991 F.2d at 901. Id. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. 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. In the first appeal, this court rejected Brown's Fifth Amendment equal protection challenge to the statutory scheme. We therefore affirm in all respects the district court's analysis and rulings on the issue of liability. The prior panel upheld the district court's rulings in all respects save one. 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. For example, if a university chooses to sponsor a football team, it is permitted to sponsor only a men's team. 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. See Cohen II, 991 F.2d at 901. Cohen III, 879 F.Supp. (1971), reprinted in 1972 U.S.C.C.A.N. 2021), cert. Brown loses and is required to restore the programs. 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. We do not question Cohen II's application of 1681(b). While cognizant of differences between race-focused and gender-focused Equal Protection precedent, I nevertheless think that Adarand compels us to view so-called benign gender-conscious governmental actions under the same lens as any other gender-conscious governmental actions. at 192. at n. 41. 93-380, 88 Stat. Walsh v. 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. 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. Based on the facts of this case, the Court holds that . at 2291 (Scalia, J. dissenting). ), cert. Cohen III, 879 F.Supp. Opinion for Amy Cohen v. Brown University, 991 F.2d 888 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. at 1196. The district court found Brown's plan to be fatally flawed for two reasons. a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . In this way, Brown could easily achieve prong three's standard of full and effective accommodation of the underrepresented sex. This remedy would entail upgrading the positions of approximately 40 women. Further, inappropriately relying on Frontiero, 411 U.S. 677, 93 S.Ct. 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). The binding authority of Cohen II, therefore, is lessened by the fact that it was an appeal from a preliminary injunction. 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. See Cohen II, 991 F.2d at 898 n. 15. In its introduction, Brown makes clear that it would prefer to maintain its current program and that the plan submitted. Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. 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. 6. In so doing, we upheld the district court's analysis and ruled that an institution violates Title IX if it ineffectively accommodates its students' interests and abilities in athletics under 34 C.F.R. 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. 1 On January 17, 2021, the Amendment to the Joint Agreement was appealed by Plaintiff Class Member Objectors. Law School Case Brief; Cohen v. Brown Univ. 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. See Grivois v. Brown, 6 Vet. JOINT STATEMENT ISSUED BY THE PARTIES IN COHEN V. BROWN UNIVERSITY. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . Thus, the analytical result would be same, even if this were an affirmative action case. . The controversy in this case began in April 1968, when Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" into a Los Angeles courthouse. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. See Missouri v. Jenkins, 515 U.S. 70, ----, 115 S.Ct. 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. 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. The district court's definition of athletics participation opportunities comports with the agency's own definition. 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. This prong surely requires statistical balancing. at 1194-95 (noting that Webster upheld a social security wage law that benefitted women in part because its purpose was the permissible one of redressing our society's longstanding disparate treatment of women). 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. (v) Brown will make explicit a de facto junior varsity team for women's field hockey. The doctrine of the law of the case directs that a decision of an appellate court on an issue of law, unless vacated or set aside, governs the issue during all subsequent stages of litigation in the nisi prius court and thereafter on any further appeal. Commercial Union Ins. 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. Id. 3. In other words, the second prong also requires balancing. at 2777 (recognizing that the authority of a federal court to incorporate racial criteria into a remedial decree also extends to statutory violations and that, where federal anti-discrimination laws have been violated, race-conscious remedies may be appropriate); Weber, 443 U.S. at 197, 99 S.Ct. 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. Citation. These conclusory assertions do not comport with the law in this circuit. Id. The panel cited as authority Metro Broadcasting, 497 U.S. at 565-66, 110 S.Ct. The district court found that, in 1993-94, Brown's intercollegiate athletics program consisted of 32 teams, 16 men's teams and 16 women's teams. of Educ., 402 U.S. 1, 25, 91 S.Ct. We disagree. EPA questioned the petitioners' standing to invoke the court's jurisdiction under Article III. 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