at 189. Based on an analysis of membership in varsity teams, the district court concluded that there existed a disparity between female participation in intercollegiate athletics and female student enrollment. See Adarand, 515 U.S. at ----, 115 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. at 725-28, because [s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy, Wygant, 476 U.S. at 276, 106 S.Ct. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. denied, 510 U.S. 1004, 114 S.Ct. of Higher Educ., 524 F.Supp. The district court found that these two flaws in the proposed plan were sufficient to show that Brown had not made a good faith effort to comply with this Court's mandate. Id. Irving, 49 F.3d at 834. 554, 92d Cong., 1st Sess. at 204, 97 S.Ct. 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. Brown's relative interests approach is not a reasonable interpretation of the three-part test. 185 (D.R.I.1995) (Cohen III), to demonstrate the many ways in which a university might achieve compliance: 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. Therefore, we still have the problem that to fully accommodate the interests of the underrepresented sex may be impossible under the district court's interpretation. . [T]he Court proceeds to interpret exceedingly persuasive justification in a fashion that contradicts the reasoning of Hogan and our other precedents. Id. The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. Cohen III, 879 F.Supp. at 2274 (citing J.E.B. 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. 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. 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. 1192, 1194-95, 51 L.Ed.2d 360 (1977) (allowing women to compute certain social security benefits with a more favorable formula than could be used by men); Lewis v. Cowen, 435 U.S. 948, 98 S.Ct. 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. denied, 518 U.S. 1033, 116 S.Ct. Kelley, 35 F.3d at 271 (footnotes omitted). 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. 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. We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. 15. 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. 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. 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. 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. This standard, in fact, goes farther than the straightforward quota test of prong one. We find that the first part of the test is satisfied. 37%. Inc. v. Pena, 515 U.S. 200, ----, 115 S.Ct. 1845, 123 L.Ed.2d 470 (1993); Lamphere v. Brown Univ., 875 F.2d 916, 922 (1st Cir.1989)). If statistical evidence of interest levels is not to be considered by courts, however, there is no way for schools to determine whether they are in compliance. 531, 536 n. 9 (1981) (citing Thomas A. Cox, Intercollegiate Athletics and Title IX, 46 Geo.Wash.L.Rev. Defendant: Brown University Court that made decision on the case: U.S. District Court for the District of Rhode Island Facts of the Case In the year 1996, Cohen set out a lawsuit against Brown University because she believed that Brown was violating Title IX rules. At any rate, Kelley pre-dates the Supreme Court's opinions in Adarand and Virginia, meaning that it suffers from the same defects as Cohen II. 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. Ready, set, go. at 192. See H.R.Rep. 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. 14. at 205. Whatever may be the merits of adopting strict scrutiny as the standard to be applied to gender-based classifications, it is inappropriate to suggest, as Brown does, that Frontiero compels its application here.Brown's assertion that Adarand obligates this court to apply Croson to its equal protection claim is also incorrect. 65, 74 L.Ed.2d 66 (1982). First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. Brown merely asserts, however, that the study was admissible under Rule 803, id. at 981. 1681-1688 (Title IX), and its implementing regulations, 34 C.F.R. T.B., 511 U.S. 127, 136-37, 114 S.Ct. First, we now have a full record before us and a set of well-defined legal questions presented by the appellant. 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). Although Cohen II, in its brief discussion of the equal protection issue, does not specify the precise standard it used, the court stated that even if we were to assume that the regulation creates a gender classification slanted somewhat in favor of women, we would find no constitutional infirmity. Cohen II, 991 F.2d at 901. at 993. Nor does the second prong of the test change the analysis. 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. 5. Instead, the law requires that, absent a demonstration of continuing program expansion for the underrepresented gender under prong two of the three-part test, an institution must either provide athletics opportunities in proportion to the gender composition of the student body so as to satisfy prong one, or fully accommodate the interests and abilities of athletes of the underrepresented gender under prong three. First, Califano did not necessarily rule on benign classifications, as Metro Broadcasting and Adarand clearly did. Brown assigns error to the district court's exclusion of certain evidence pertaining to the relative athletics interests of men and women. Thus, the analytical result would be same, even if this were an affirmative action case. I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. Id. Appellee's Br. It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. Cohen III, 879 F.Supp. 706, 102 L.Ed.2d 854 (1989) (striking down a municipal set-aside program requiring that 30% of the city's construction dollars be paid to racial minority subcontractors on an annual basis); Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. Id. denied, 507 U.S. 1030, 113 S.Ct. 379, 384 (1995) (citing Grottveit, supra). Solutions. The district court's conclusion with respect to prong two, however, implies that a school must not only demonstrate that the proportion of women in their program is growing over time, it must also show that the absolute number of women participating is increasing.26. Co., 41 F.3d at 770 (citing 1B Moore at 0.404[10]). As with other anti-discrimination regimes, Title IX neither mandates a finding of discrimination based solely upon a gender-based statistical disparity, see Cohen II, 991 F.2d at 895, nor prohibits gender-conscious remedial measures. Thus, we have not construed the doctrine as an inflexible straitjacket that invariably requires rigid compliance. Northeast Utils. Neither the Policy Interpretation's three-part test, nor the district court's interpretation of it, mandates statistical balancing; [r]ather, the policy interpretation merely creates a presumption that a school is in compliance with Title IX and the applicable regulation when it achieves such a statistical balance. Kelley, 35 F.3d at 271. 1996) 101 F.3d 155, 179-180); WHEREAS, Through the enactment of Assembly Bill No . at 980, and that, of the 894 undergraduate students competing on these teams, 63.3% (566) were men and 36.7% (328) were women, 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 The first prong is met if the school provides participation opportunities for male and female students in numbers substantially proportionate to their enrollments. 1. Appellees argue that this claim is waived because Brown did not raise it in the district court. Even assuming that membership numbers in varsity sports is a reasonable proxy for participation opportunities-a view with which I do not concur-contact sports should be eliminated from the calculus. Bob Jones University v. United States; City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983). at 11. Applying these principles, Cohen II held that the applicable regulation, 34 C.F.R. The plan sets forth nine steps for its implementation, id. 106.3, and by the Policy Interpretation, 44 Fed.Reg. 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. at 208. at ----, 116 S.Ct. at 469, 109 S.Ct. 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. Instead, they have established a legal rule that straight-jackets college athletics programs by curtailing their freedom to choose the sports they offer. In addition, a majority of the Court in Guardians Ass'n v. Civil Serv. A school can satisfy the test in three ways. See also Weber, 443 U.S. at 201-02, 99 S.Ct. 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. at 1035-36). 706, 721-22, 102 L.Ed.2d 854 (1989). Brown also claims error in the district court's failure to apply Title VII standards to its analysis of whether Brown's intercollegiate athletics program complies with Title IX. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. (iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. Order of August 17, 1995 at 11. at 2274. Appellees have argued that the three-prong test does not create a gender classification because the classification applies to both women and men. 1192, 1194-95, 51 L.Ed.2d 360 (1977); Frontiero v. Richardson, 411 U.S. 677, 684-86, 93 S.Ct. [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 71,413. 20 U.S.C. 92-2483. 3331, 3336, 73 L.Ed.2d 1090 (1982), with Metro Broadcasting, 497 U.S. at 564-65, 110 S.Ct. (v) Brown will make explicit a de facto junior varsity team for women's field hockey. at 5. 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. 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. 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. Research the case of Cohen v. Brown University, from the First Circuit, 01-16-1996. Please try again. In Frontiero, a plurality of the Court concluded that gender-based classifications, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. 411 U.S. at 688, 93 S.Ct. at ----, 116 S.Ct. Like other anti-discrimination statutory schemes, the Title IX regime permits affirmative action.11 In addition, Title IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the existence of discrimination. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir. 2778, 2782-83, 81 L.Ed.2d 694 (1984). It can hardly be assumed that the Court intended to include gender-based classifications within Adarand's precedential scope or to elevate, sub silentio, the level of scrutiny to be applied by a reviewing court to such classifications. Accordingly, the district court found that Brown maintained a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, id. 1764, 1769-70, 36 L.Ed.2d 583 (1973). 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. Cohen III, 879 F.Supp. at ----, 116 S.Ct. 71,413, 71,418 (December 11, 1979). examining civil rights litigation reform, part 1: qualified immunity 117th congress (2021-2022) Id. 1549, 1554-55, 71 L.Ed.2d 770 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 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. Athletic Ass'n, 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. Title IX also specifies that its prohibition against gender discrimination shall not 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 between the total number or percentage of persons of that sex participating in any federally supported program or activity, and the total number or percentage of persons of that sex in any community, State, section, or other area. 20 U.S.C.A. at ----, 115 S.Ct. 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 56 (citing Powers v. Ohio, 499 U.S. 400, 409-11, 111 S.Ct. Cohen v. Brown University. Since the applicable regulation, 34 C.F.R. Id. However, in Kelley, the Seventh Circuit, unlike the district court, did not use the three-prong test as a definitive test for liability. District Court Order at 5-6. at ----, 116 S.Ct. at 706; Wygant, 476 U.S. at 276, 106 S.Ct. at 71,417). at 2113. 398. at 3336. We emphasize two points at the outset. whether it can be demonstrated that the interests and abilities of the members of th[e] [proportionately underrepresented] sex have been fully and effectively accommodated by the present program. The court noted further that, because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender, the fact that Brown has eliminated or demoted several men's teams does not amount to a continuing practice of program expansion for women. Because the standard has changed, it is conceivable that the result of the analysis will change, making review appropriate. 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. T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. There can be no doubt that Title IX has changed the face of women's sports as well as our society's interest in and attitude toward women athletes and women's sports. 1681(b) (West 1990). Of the university-funded teams, 12 were men's teams and 13 were women's teams; of the donor-funded teams, three were women's teams and four were men's teams. In Cohen II we stated that it is established beyond peradventure that, where no contrary legislative directive appears, the federal judiciary possesses the power to grant any appropriate relief on a cause of action appropriately brought pursuant to a federal statute. 991 F.2d at 901 (citing Franklin, 503 U.S. at 70-71, 112 S.Ct. In any event, the three-part test is, on its face, entirely consistent with 1681(b) because the test does not require preferential or disparate treatment for either gender. 18. 1B Moore at 0.404[1]. 1946, 1961, 60 L.Ed.2d 560 (1979). In its decision in Cohen II, this court recognized and, indeed, emphasized the fact that its holding was only preliminary. 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. 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