106.41(c)(1). A. In considering plaintiffs' motion for a preliminary injunction in Cohen I, the district court (i) paid meticulous attention to the parties' prospects for success over the long haul; (ii) plainly visualized both the factual intricacies and legal complexities that characterize Title IX litigation; (iii) held a lengthy adversary hearing and reviewed voluminous written submissions; and (iv) correctly focused on the three-part accommodation test. Cohen II, 991 F.2d at 903. at 71,415. The Metro Broadcasting Court applied intermediate scrutiny, notwithstanding that the previous year, in Croson, 488 U.S. 469, 109 S.Ct. See Hogan, 458 U.S. at 728, 102 S.Ct. at n. 1. Requiring parallel teams is a rigid approach that denies schools the flexibility to respond to the differing athletic interests of men and women. See Miller v. Johnson, 515 U.S. 900, ----, 115 S.Ct. Id. at 2288 (Rehnquist, C.J., concurring in the judgment) (collecting cases).22. The district court's interpretation of prongs one and three creates an Equal Protection problem, which I analyze in two steps. 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. Title VI prohibits discrimination on the basis of race, color, or national origin in institutions benefitting from federal funds. Similarly, the district court's interpretation requires the school to accommodate the interests of every female student until proportionality is reached. 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 . See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. We cannot pretend that an interpretation of a statute that contains explicit categorization according to gender and that has intentional gender-conscious effect does not represent gender-based government action. v. Alabama ex rel. Ronald D. Rotunda & John E. Nowak, 3 Treatise on Constitutional Law 18.2, at 7-8 (2d ed. 1993) (Cohen II), the standard intermediate scrutiny test . . It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. Villanueva v. Wellesley College, 930 F.2d 124, 129 (1st Cir.1991) (citations omitted). Cohen II held that the Policy Interpretation is entitled to substantial deference because it is the enforcing agency's considered interpretation of the regulation. 991 F.2d at 896-97. 20. 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 III, 879 F.Supp. Injury is Brown violated Title IX in 2020 when it eliminated 11 sports 3. A second Supreme Court case has also made it necessary to review our decision in Cohen II. at 3008, in upholding against a Fifth Amendment equal protection challenge a benign race-based affirmative action program that was adopted by an agency at the explicit direction of Congress. 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. 22. The district court ordered Brown to submit within 120 days a comprehensive plan for complying with Title IX, but stayed that portion of the order pending appeal. at ----, 115 S.Ct. 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. But any such departure demands special justification.) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 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. Accordingly, I would reverse and remand for further proceedings. We held that the district court erred in placing upon Brown the burden of proof under prong three of the three-part test used to determine whether an intercollegiate athletics program complies with Title IX, discussed infra. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). 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). 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. A group of states and local governments alleged that EPA has abdicated it responsibility to regulate the emission of greenhouse gases under the Clean Air Act. 2297, 2303, 124 L.Ed.2d 586 (1993)). 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 . Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. 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. In order to bring Brown into compliance with prong one under defendants' Phase II, I would have to order Brown to cut enough men's teams to eradicate approximately 213 men's varsity positions. Court records for this case are available from U.S. Court Of Appeals, First Circuit. In fact, appellees have failed to point to any congressional statement or indication of intent regarding a proportional representation scheme as applied by the district court. The regulation at issue in this case, 34 C.F.R. 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. 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. 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. Croson Co., 488 U.S. 469, 109 S.Ct. This assumption is erroneous because the proposition for which Cohen II cited Metro Broadcasting as authority has not been vitiated by Adarand, is of no consequence to our disposition of the issues raised in this litigation, and is, in any event, unchallenged here.19. To the extent that Congress expressed a specific intent germane to the district court's interpretation, Congress, if anything, expressed an aversion to quotas as a method to enforce Title IX. at 3008. 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. 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. As explained previously, Title IX as it applies to athletics is distinct from other anti-discrimination regimes in that it is impossible to determine compliance or to devise a remedy without counting and comparing opportunities with gender explicitly in mind. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. No. at 205. It is well established, however, that a decision of the Supreme Court, that is rendered between two appeals and is irreconcilable with the decision on the first appeal, must be followed on the second appeal. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. 2097, 132 L.Ed.2d 158 (1995), however, courts applying intermediate scrutiny sometimes allowed benign gender classifications on the grounds that they were a reasonable means of compensating women as a class for past discrimination. Ronald D. Rotunda & John E. Novack, 3 Treatise on Constitutional Law 18.23, at 277; see Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 531, 536 n. 9 (1981) (citing Thomas A. Cox, Intercollegiate Athletics and Title IX, 46 Geo.Wash.L.Rev. Co., 74 F.3d 317, 322 (1st Cir.1996) (internal quotations omitted); see also Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). at 212, is clearly correct. 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. As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. First, as explained earlier, Adarand and Croson apply to review of legislative affirmative action schemes. provide for the women of America something that is rightfully theirs-an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work. 1192, 51 L.Ed.2d 360 (1977) (sex)). The district court held that, because Brown maintains a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, it cannot gain the protection of prong one. Cohen III, 879 F.Supp. We must, as Brown urges, reexamine the Equal Protection challenge to the three-prong test as interpreted by the district court. at 2113. In 2018, the defendant established a . Please try again. United States Court of Appeals for the First Circuit. at 71,417). at 205-06, 99 S.Ct. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. denied, 516 U.S. 1159, 116 S.Ct. The district court subsequently issued a modified order, requiring Brown to submit a compliance plan within 60 days. It is well settled that, where, as here, Congress has expressly delegated to an agency the power to elucidate a specific provision of a statute by regulation, the resulting regulations should be accorded controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 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). 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. 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. This action was taken to ensure that the Order was final for purposes of this court's jurisdiction, and to expedite the appeal process. at 3008-09 (holding that benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives). Trades Council, 485 U.S. 568, 108 S.Ct. ), cert. 20 U.S.C.A. Although Metro Broadcasting explicitly discussed race-conscious rather than gender-conscious classifications, we applied its standard in Cohen II. 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). Second, Brown's plan artificially boosts women's varsity numbers by adding junior varsity positions on four women's teams. Id. The majority pays lip service to these concerns in the final pages of its long opinion, stating that we are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations. Majority Opinion at 185 (quoting Cohen II, 991 F.2d at 906), and [o]ur 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. Majority Opinion at 185. 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. at 71,417.The 1990 version of the Title IX Athletics Investigator's Manual, an internal agency document, instructs investigating officials to consider, inter alia, the following: (i) any institutional surveys or assessments of students' athletics interests and abilities, see Valerie M. Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator's Manual at 22 (1990); (ii) the expressed interests of the underrepresented gender, id. Majority Opinion at 163. 20 U.S.C. 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. In addition, the majority has put the power to control athletics and the provision of athletic resources in the hands of the underrepresented gender. This is a curious result because the entire three-prong test is based on relative participation rates. 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 at II-2. 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. 15 women's athletic teams (328) 16 men's teams (63%, 566) What Brown did to handle with the problem that there were many athletes. In other words, evidence of differential levels of interest is not to be credited because it may simply reflect the result of past discrimination. 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. Accordingly, the district court found that Brown maintained a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, id. 71,413, 71,418 (December 11, 1979). I believe that we face such a situation in the instant case. at 906-07. Junior varsity squads, by definition, do not meet this criterion. ; see also United States v. Reveron Martinez, 836 F.2d 684, 687 n. 2 (1st Cir.1988) (To be sure, there may be occasions when courts can-and should-loosen the iron grip of stare decisis. See also Weber, 443 U.S. at 201-02, 99 S.Ct. 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. I agree with Brown that, in the context of OCR's Policy Interpretation, prong three is susceptible to at least these two plausible interpretations. In the course of the trial on the merits, the district court found that, in 1993-94, there were 897 students participating in intercollegiate varsity athletics, of which 61.87% (555) were men and 38.13% (342) were women. at 192. 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. As a result, I opt for Brown's construction of prong three, which, as we have discussed, infra, is also a reasonable reading. First, the district court's interpretation creates a quota scheme. Mora v. J&M Plating, Inc., 2022 IL App (2d) 210692, 2022 WL 17335861 (2022). Brown contends that we are free to disregard the prior panel's explication of the law in Cohen II. at ----, 116 S.Ct. 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. The school argues women are less interested in sports than men. 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. According to the district court, Brown's athletics program violates prong three because members of the proportionately underrepresented sex have demonstrated interest sufficient for a university-funded varsity team that is not in fact being funded. denied, 518 U.S. 1033, 116 S.Ct. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection of such teams is based upon competitive skill or the activity involved is a contact sport. (internal citations omitted). 515, ---------, 116 S.Ct. at ----, 116 S.Ct. Cohen II, 991 F.2d at 897. denied, 459 U.S. 828, 103 S.Ct. supreme court rules unanimously that plaintiff's filing title IX lawsuits are entitled to receive punitive damages ($$) when . Cohen II cited Metro Broadcasting for a general principle regarding Congress's broad powers to remedy discrimination, a proposition that was not reached by Adarand. Majority Opinion at 179 n. 15. Brown is no longer an appellant seeking a favorable result in the Court of Appeals. of Educ., 402 U.S. 1, 25, 91 S.Ct. 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. The instant case should be distinguished from Califano for two reasons. The district court ordered Brown to elevate and maintain women's gymnastics, women's water polo, women's skiing, and women's fencing to university-funded varsity status. Id. Norfolk, November 28.The injunc tion granted on the part of the special tax bondholders vs. the State Teasurer, was opened to-day before Judges Brooks and Bond and was argued by Walker J. Budd, of Baltimore, for the plaintiff, and Geo. 1996) . 2097, 132 L.Ed.2d 158 (1995) (remanding for review under strict scrutiny a challenge to a federal statute establishing a government-wide goal for awarding to minority businesses not less than 5% of the total value of all prime contracts and subcontracts for each fiscal year); Metro Broadcasting v. FCC, 497 U.S. 547, 110 S.Ct. Second, the standard of review has changed. 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. 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