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. The test applied by the court was based on (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 and (4) the public interest. Id. I agree with Brown that, in the context of OCR's Policy Interpretation, prong three is susceptible to at least these two plausible interpretations. at 1848. 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. 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. 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. Because the standard has changed, it is conceivable that the result of the analysis will change, making review appropriate. at 907, and makes it virtually impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. 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. 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. 549 U.S 497 (2007) Brief Fact Summary. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. In addition, the majority has put the power to control athletics and the provision of athletic resources in the hands of the underrepresented gender. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. See Adarand, 515 U.S. 200, 115 S.Ct. Appellant's Br. 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. Smith: male nurse touched no touch pregnant lady. It is obvious that Brown's plan was addressed to this court, rather than to offering a workable solution to a difficult problem. 1731, 1736-37, 14 L.Ed.2d 601 (1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12 (1st Cir.1991), rev'd on other grounds, 506 U.S. 139, 113 S.Ct. Why we love our games, U.S. News & World Report, July 15, 1996, at 33-34 (attributing to Title IX the explosive growth of women's participation in sports and the debunking of the traditional myth that women aren't interested in sports). The law of the case doctrine precludes relitigation of the legal issues presented in successive stages of a single case once those issues have been decided. See 1B James W. Moore et al., Moore's Federal Practice 0.404 [1] (2d ed. at 1031-33, 1035-37. 3331, 3336-37, 73 L.Ed.2d 1090 (1982); Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 92-2483. Compare Virginia, 518U.S. 1912, 1919 n. 13, 72 L.Ed.2d 299 (1982). As interpreted by the district court, the test constitutes an affirmative action, quota-based scheme. We do not question Cohen II's application of 1681(b). 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. We hold that the district court did not err in the degree of deference it accorded the regulation and the relevant agency pronouncements. . We agree with the prior panel and the district court that Brown's relative interests approach cannot withstand scrutiny on either legal or policy grounds, Cohen II, 991 F.2d at 900, because it disadvantages women and undermines the remedial purposes of Title IX by limiting required program expansion for the underrepresented sex to the status quo level of relative interests, Cohen III, 879 F.Supp. at 189. at 2491. 497 U.S. at 564-65, 110 S.Ct. Id. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. 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. 22. at 197-99; accord Kelley, 35 F.3d at 272 (holding that neither the regulation nor the policy interpretation run afoul of the dictates of Title IX). While the Policy Interpretation covers other areas, this litigation focuses on the Effective Accommodation section, which interprets 34 C.F.R. 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. Congress enacted Title IX in response to its finding-after extensive hearings held in 1970 by the House Special Subcommittee on Education-of pervasive discrimination against women with respect to educational opportunities. In addition, a gender-conscious remedial scheme is constitutionally permissible if it directly protects the interests of the disproportionately burdened gender. Apparently no weight is given to the sustainability of the interest, the cost of the sport, the university's view on the desirability of the sport, and so on. denied, 513 U.S. 1128, 115 S.Ct. See Adarand, 515 U.S. at ----, 115 S.Ct. . 37%. First, the substantive issues have been decided adversely to Brown. Id. In the 23 years that have since elapsed, this position has never commanded a majority of the Court, and has never been adopted by this court. 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. Cohen II's assumption that a regulation slanted in favor of women would be permissible, Cohen II 991 F.2d at 901, and by implication that the same regulation would be impermissible if it favored men, was based on Metro Broadcasting, which held that benign race-based action by the federal government was subject to a lower standard than non-remedial race-based action. 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. at 189. 30. In 2018, the defendant established a . It is not for the courts, or the legislature, for that matter, to mandate programs of a given size. Equal Protection is implicated where the claim is made that a classification made by the government intentionally subjects an individual to treatment different from similarly situated individuals based on an impermissible characteristic, such as race, national origin, or gender. Thus, Brown contends, to meet fully-in an absolute sense-the interests and abilities of an underrepresented gender, while unmet interest among the overrepresented gender continues, would contravene the governing principle of equally effective accommodat[ion] of the interests and abilities of students of both genders. Brown's efforts to circumvent the controlling effect of Cohen II are unavailing, however, because, under the law of the case doctrine, we are bound in this appeal, as was the district court on remand, by the prior panel's rulings of law. We must, as Brown urges, reexamine the Equal Protection challenge to the three-prong test as interpreted by the district court. at 2728-29 (construing 703(j) of Title VII, upon which 1681(b) of Title IX was based, and concluding that [t]he natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action).In addition, remedial action and voluntary affirmative action to overcome the effects of gender discrimination are permitted under the Title IX regulations, 34 C.F.R. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. 1996) . We view Brown's argument that women are less interested than men in participating in intercollegiate athletics, as well as its conclusion that institutions should be required to accommodate the interests and abilities of its female students only to the extent that it accommodates the interests and abilities of its male students, with great suspicion. The panel then carefully delineated the burden of proof, which requires a Title IX plaintiff to show, not only disparity between the gender composition of the institution's student body and its athletic program, thereby proving that there is an underrepresented gender, id. No. 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. See 44 Fed.Reg. at 56 (citing Powers v. Ohio, 499 U.S. 400, 409-11, 111 S.Ct. Id. I conclude, therefore, that Adarand and Virginia are irreconcilable with the analysis in Cohen II and, accordingly, we must follow the guidance of the Supreme Court in this appeal. This is a class action lawsuit charging Brown University, its president, and its athletics director (collectively Brown) with discrimination against women in the operation of its intercollegiate athletics program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. The district court subsequently issued a modified order, requiring Brown to submit a compliance plan within 60 days. 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. 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. at 1064 n. 16; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. Although Metro Broadcasting explicitly discussed race-conscious rather than gender-conscious classifications, we applied its standard in Cohen II. at 202. Law School Case Brief; Cohen v. Brown Univ. The email address cannot be subscribed. Nor do the regulations require institutions to field gender-integrated teams: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.Id.Whether or not the institution maintains gender-segregated teams, it must provide gender-blind equality of opportunity to its student body. Cohen II, 991 F.2d at 896. This motion was filed by the original plaintiffs of Cohen v. v. Bakke, 438 U.S. 265, 98 S.Ct. 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. Cf. B. They heated the cellar accordingly but this raised the temperature on the floor above, which caused the plaintiff's stock of delicate brown paper to dry and diminish in value. of Pa., 812 F.Supp. Thus, Title IX and Title VI share the same constitutional underpinnings. Because Dr. Sabor's direct testimony did not address this issue, it was within the district court's discretion to limit cross-examination to the subject matter of the direct examination. Fed.R.Evid. 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. ("Title IX"). Law School Case Brief; Cohen v. Brown Univ. (internal citations omitted). See Cohen III, 879 F.Supp. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. See Adarand, 515 U.S. at ----, 115 S.Ct. Kuttner, supra, at A15. at 1771. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. Cohen III, 879 F.Supp. at 210-13. 328 women athletes. 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. The Metro Broadcasting Court applied intermediate scrutiny, notwithstanding that the previous year, in Croson, 488 U.S. 469, 109 S.Ct. Brown and the attorneys representing the plaintiff class in the Cohen v. Brown case have reached a proposed settlement on plaintiffs' June 29 court challenge to Brown's restructuring of its athletics program. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. Partially as a consequence of this, participation rates of women are far below those of men.). 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. (internal quotation marks and citation omitted). The same could be said of any individual sport, including golf, track and field, cycling, fencing, archery, and so on. at n. 41. at 71,418). As a private institution that receives federal financial assistance, Brown is required to comply with Title IX. v. Alabama ex rel. and Tel. Amy Cohen (plaintiff), a member of the women's gymnastics team, and several other student-athletes filed suit against Brown alleging that the institution violated Title IX. Co., 3 F.3d 471, 475 (1st Cir.1993), cert. 1572, 55 L.Ed.2d 797 (1978) (summary affirmance of a district court decision upholding a provision of the Railroad Retirement Act that allowed women to retire at age 60 while men could not retire until age 65). 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. Measuring compliance through an evaluation of a school's allocation of its athletic resources allows schools flexibility in meeting the athletic interests of their students and increases the chance that the actual interests of those students will be met. I recognize the financial constraints Brown faces; however, its own priorities will necessarily determine the path to compliance it elects to take. Nevertheless, we have recognized that academic freedom does not embrace the freedom to discriminate. 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. If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test. Id. See Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. We point out that Virginia adds nothing to the analysis of equal protection challenges to gender-based classifications that has not been part of that analysis since 1979, long before Cohen II was decided. 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. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 612 (1974).6 The regulations specifically address athletics at 34 C.F.R. While acknowledging that Brown has an impressive history of program expansion, the district court found that Brown failed to demonstrate that it has maintained a continuing practice of intercollegiate program expansion for women, the underrepresented sex. Id. Ready, set, go. 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. See, e.g., Frank DeFord, The Women of Atlanta, Newsweek, June 10, 1996, at 62-71; Tharp, supra, at 33; Robert Kuttner, Vicious Circle of Exclusion, Washington Post, September 4, 1996, at A15. Kelley, 35 F.3d at 271 (footnotes omitted). In Fullilove, a plurality of the Court applied a standard subsequently acknowledged to be intermediate scrutiny, see Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. 106.41, deserves controlling weight, 991 F.2d at 895; that the Policy Interpretation warrants substantial deference, id. 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