Cohen v. Brown University

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-2205
AMY COHEN, ET AL.,
Plaintiffs - Appellees,
v.
BROWN UNIVERSITY,
Defendants - Appellants.
ERRATA SHEET
The opinion of this Court issued on November 21, 1996, is
amended as follows:
On page 9, line 15, replace "women. Id. at 981." with
"women, id. at 981.".
On page 10, line 18, delete extra space between "sports" and
"--".
On page 11, line 9, delete "id.,".
On page 11, line 12, delete "totals," id." and replace with
"totals." Id.".
On page 11, line 16, delete "id.,".
On page 15, line 36, delete "then" and replace with
"former".
On page 24, line 13, insert comma after "and".
On page 26, line 14, delete "mere" and replace with "bare".
On page 38, line 17, insert "for women" between "treatment"
and "by".
On page 42, line 18, replace "to women" with "for women".
On page 43, line 8, delete "Cf." and replace it with "See".
On page 47, line 7, delete "athletics" before
"opportunities".
On page 55, lines 9 and 10, delete "in varsity competition,"
and replace it with "at the varsity level,".
On page 59, line 19, delete "(1989)".
On page 62, line 5, delete "(1973)".
On page 62, line 6, delete "(1989)".
On page 64, lines 28 and 29, replace "is merely" with "is,
in effect,".
On page 65, line 21, insert "as it applies to athletics"
between "Title IX" and "is".
On page 68, line 2, insert a new paragraph beginning with
"Brown first contends".
On page 68, line 9, insert a new paragraph beginning with
"Brown also suggests".
On page 79, line 22, replace "Court" with "court".
On page 80, lines 3 and 6, replace "Court" with "court".
On page 86, lines 5 and 13, replace "Court" with "court".
On page 88, line 22, cite to the C.F.R. should be: "34
C.F.R. 106.41(b) (1995)".
On page 89, replace text on line 1 with: "one sex, however,
and where "athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be
allowed to".
On page 89, lines 11-15: Delete two sentences: "When the
university chooses a non-contact sport, 34 C.F.R. 106.41(b)
requires that the school sponsors one team for each gender, or
allow both sexes to try-out. If the university chooses a contact
sport, however, try-outs can be restricted to one sex.".
On page 89, line 17, delete "hockey".
On page 95, last line, delete comma after "the
interpretation chosen".
On page 96, line 10, replace "Appellees" with "appellees".
On page 98, line 17, replace "Appellees" with "appellees".
On page 100, line 19, replace "Appellees" with "appellees".
On page 101, lines 8 and 11, replace "Appellees" with
"appellees".
-2-
On page 103, line 2, replace "Court" with "court".
On page 104, line 30, replace "female" with "females".
On page 105, line 18, replace "Court" with "court".
-3-
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2205
AMY COHEN, ET AL.,
Plaintiffs - Appellees,
v.
BROWN UNIVERSITY, ET AL.,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Joan A. Lukey and Walter B. Connolly, Jr., with whom Hale
and Dorr, Alison B. Marshall, Miller, Canfield, Paddock & Stone,
Beverly E. Ledbetter, General Counsel, Brown University, Julius
C. Michaelson, Jeffrey S. Michaelson and Michaelson & Michaelson
were on brief for appellants.
Martin Michaelson, with whom Amy Folsom Kett, Suzanne M.
Bonnet, Hogan & Hartson L.L.P. and Sheldon E. Steinbach, General
Counsel, American Council on Education, were on brief for
American Council on Education, Association of American
Universities, National Association of Independent Colleges and
Universities, and National Association of State Universities and
Land-Grant Colleges, amici curiae.
George A. Davidson, Carla A. Kerr, Seth D. Rothman and
Hughes Hubbard & Reed on brief for Baylor University, Boston
University, Colgate University, College of the Holy Cross,
Colorado State University, Fairfield University, George
Washington University, John Hopkins University, Lafayette
College, New York University, Saint Peter's College, Southern
Methodist University, Tulane University, University of Arkansas,
University of Nebraska, University of Notre Dame, and Wake Forest
University, amici curiae.
Melinda Ledden Sidak and Anita K. Blair on brief for The
Independent Women's Forum, amicus curiae.
Stephen S. Ostrach, Todd S. Brilliant and New England Legal
-1-
Foundation on brief for American Baseball Coaches Association,
College Swim Coaches Association of America, National Wrestling
Coaching Association and United States Water Polo, amici curiae.
Lynette Labinger, with whom Roney & Labinger, Amato A.
DeLuca, DeLuca & Weizenbaum, Ltd., Raymond Marcaccio, Blish &
Cavanagh, Sandra L. Duggan, Sandra L. Duggan, Esq., P.C., Arthur
H. Bryant, Leslie A. Brueckner, and Trial Lawyers for Public
Justice, P.C. were on brief for appellees.
Deborah L. Brake, with whom Marcia D. Greenberger, Judith C.
Appelbaum and National Women's Law Center were on brief for
National Women's Law Center, American Association of University
Women/AAUW Legal Advocacy Fund, American Civil Liberties Union
Women's Rights Project, California Women's Law Center, Center For
Women Policy Studies, Connecticut Women's Education and Legal
Fund, Equal Rights Advocates, Feminist Majority Foundation, Girls
Incorporated, National Association for Girls and Women in Sport,
National Association for Women in Education, National Coalition
for Sex Equity in Education, National Commission on Working
Women, National Council of Administrative Women in Education,
National Education Association, National Organization for Women
Foundation, Now Legal Defense and Education Fund, National
Softball Coaches Association, Northwest Women's Law Center,
Parents for Title IX, Rhode Island Affiliate American Civil
Liberties Union, Women Employed, Women's Basketball Coaches
Association, Women's Law Project, Women's Legal Defense Fund,
Women's Sports Foundation, and YWCA of the USA, amici curiae.
Deval L. Patrick, Assistant Attorney General, Isabelle Katz
Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey and
Lisa W. Edwards, Attorneys, Department of Justice, on brief for
the United States, amicus curiae.
November 21, 1996
-2-
-2-
BOWNES, Senior Circuit Judge. This is a class
BOWNES, Senior Circuit Judge.
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. 1681-1688
("Title IX"), and its implementing regulations, 34 C.F.R.
106.1-106.71. 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.
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. Contemporaneously, Brown demoted two men's
teams, water polo and golf, from university-funded to donor-
funded varsity status. As a consequence of these demotions,
all four teams lost, not only their university funding, but
most of the support and privileges that accompany university-
funded varsity status at Brown.
Prior to the trial on the merits that gave rise to
this appeal, the district court granted plaintiffs' motion
for class certification and denied defendants' motion to
dismiss. Subsequently, after hearing fourteen days of
testimony, the district court granted plaintiffs' motion for
-3-
-3-
a preliminary injunction, ordering, inter alia, that the
women's gymnastics and volleyball teams be reinstated to
university-funded varsity status, and prohibiting Brown from
eliminating or reducing the status or funding of any existing
women's intercollegiate varsity team until the case was
resolved on the merits. Cohen v. Brown Univ., 809 F. Supp.
978, 1001 (D.R.I. 1992) ("Cohen I"). A panel of this court
affirmed the district court's decision granting a preliminary
injunction to the plaintiffs. Cohen v. Brown Univ., 991 F.2d
888, 907 (1st Cir. 1993) ("Cohen II"). 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. 106.41(c)(1) (1995), regardless
of its performance with respect to other Title IX areas. Id.
at 897.
On remand, the district court determined after a
lengthy bench trial that Brown's intercollegiate athletics
program violates Title IX and its supporting regulations.
Cohen v. Brown Univ., 879 F. Supp. 185, 214 (D.R.I. 1995)
("Cohen III"). 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. Id. The district court subsequently issued a
modified order, requiring Brown to submit a compliance plan
-4-
-4-
within 60 days. Modified Order of May 4, 1995. This action
was taken to ensure that the Order was "final" for purposes
of this court's jurisdiction, and to expedite the appeal
process. Id. Finding that Brown's proposed compliance plan
was not comprehensive and that it failed to comply with the
opinion and order of Cohen III, the district court rejected
the plan and ordered in its place specific relief consistent
with Brown's stated objectives in formulating the plan.
Order of August 17, 1995 at 11. 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. Id. at 12. 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. Id. at 11.
The district court entered final judgment on September 1,
1995, and on September 27, 1995, denied Brown's motion for
additional findings of fact and to amend the judgment. This
appeal followed.
Brown claims error in certain evidentiary rulings
made during the trial and in the district court's order of
specific relief in place of Brown's proposed compliance plan.
In addition, and as in the previous appeal, Brown challenges
on constitutional and statutory grounds the test employed by
the district court in determining whether Brown's
-5-
-5-
intercollegiate athletics program complies with Title IX. In
the first appeal, a panel of this court elucidated the
applicable legal framework, upholding the substance of the
district court's interpretation and application of the law in
granting plaintiffs' motion for a preliminary injunction,1
and rejecting essentially the same legal arguments Brown
makes here.
Brown contends that we are free to disregard the
prior panel's explication of the law in Cohen II. 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. 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.
1. The prior panel upheld the district court's rulings in
all respects save one. 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. Cohen II, 991 F.2d at 903.
-6-
-6-
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 therefore
affirm in all respects the district court's analysis and
rulings on the issue of liability. We do, however, find
error in the district court's award of specific relief and
therefore remand the case to the district court for
reconsideration of the remedy in light of this opinion.
I.
I.
The relevant facts, legal principles, and
procedural history of this case have been set forth in
exhaustive detail in the previous opinions issued in this
case. Thus, we recite the facts as supportably found by the
district court in the course of the bench trial on the merits
in a somewhat abbreviated fashion.
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. at 188. Brown
operates a two-tiered intercollegiate athletics program with
respect to funding: although Brown provides the financial
resources required to maintain its university-funded varsity
2. Brown's football team competes in Division I-AA, the
second highest level of NCAA competition. Cohen III, 879 F.
Supp. at 188 n.4.
-7-
-7-
teams, donor-funded varsity athletes must themselves raise
the funds necessary to support their teams through private
donations. Id. at 189. The district court noted that the
four demoted teams were eligible for NCAA competition,
provided that they were able to raise the funds necessary to
maintain a sufficient level of competitiveness, and provided
that they continued to comply with NCAA requirements. Id. at
189 n.6. 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. Id. at
189. For example, the district court found that some schools
are reluctant to include donor-funded teams in their varsity
schedules3 and that donor-funded teams are unable to obtain
varsity-level coaching, recruits, and funds for travel,
equipment, and post-season competition. Id. at 189-90.
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
I, 809 F. Supp. at 981. The district court found that Brown
3. Two schools declined to include Brown in future varsity
schedules when women's volleyball was demoted to donor-funded
status. Cohen II, 991 F.2d at 892 n.2; Cohen I, 809 F. Supp.
at 993.
-8-
-8-
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.
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. Thus, plaintiffs contended, what appeared
to be the even-handed demotions of two men's and two women's
teams, in fact, perpetuated Brown's discriminatory treatment
of women in the administration of its intercollegiate
athletics program. In the course of the preliminary
injunction hearing, the district court found that, in the
academic year 1990-91, Brown funded 31 intercollegiate
varsity teams, 16 men's teams and 15 women's teams, Cohen I,
809 F. Supp. 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. at 981. During the same academic
year, Brown's undergraduate enrollment comprised 52.4%
(2,951) men and 47.6% (2,683) women. Id. The district court
also summarized the history of athletics at Brown, finding,
inter alia, that, while nearly all of the men's varsity teams
were established before 1927, virtually all of the women's
-9-
-9-
varsity teams were created between 1971 and 1977, after
Brown's merger with Pembroke College. Id. The only women's
varsity team created after this period was winter track, in
1982. Id.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.
Cohen III, 879 F. Supp. at 192. 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.
Id. 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. Id. 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. Id. At the time of trial, Brown offered
479 university-funded varsity positions for men, as compared
to 312 for women; and 76 donor-funded varsity positions for
men, as compared to 30 for women. Id. at 211. In 1993-94,
then, Brown's varsity program -- including both university-
and donor-funded sports -- afforded over 200 more positions
for men than for women. Id. at 192. Accordingly, the
district court found that Brown maintained a 13.01% disparity
between female participation in intercollegiate athletics and
-10-
-10-
female student enrollment, id. at 211, and that "[a]lthough
the number of varsity sports offered to men and women are
equal, the selection of sports offered to each gender
generates far more individual positions for male athletes
than for female athletes," id. at 189.
In computing these figures, the district court
counted as participants in intercollegiate athletics for
purposes of Title IX analysis those athletes who were members
of varsity teams for the majority of the last complete
season. Id. at 192. Brown argued at trial that "there is no
consistent measure of actual participation rates because team
size varies throughout the athletic season," and that "there
is no consistent measure of actual participation rates
because there are alternative definitions of 'participant'
that yield very different participation totals." Id.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. (original emphasis omitted). Thus, the
district court held that
the "participation opportunities" offered
by an institution are measured by
counting the actual participants on
intercollegiate teams. The number of
-11-
-11-
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.
Id. at 202-03.
The district court found from extensive testimony
that the donor-funded women's gymnastics, women's fencing and
women's ski teams, as well as at least one women's club team,
the water polo team, had demonstrated the interest and
ability to compete at the top varsity level and would benefit
from university funding.4 Id. at 190.
The district court did not find that full and
effective accommodation of the athletics interests and
abilities of Brown's female students would disadvantage
Brown's male students.
II.
II.
Title IX provides that "[n]o 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." 20 U.S.C.A.
4. 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.
Cohen III, 879 F. Supp. at 190 n.14.
-12-
-12-
1681(a) (West 1990). As a private institution that receives
federal financial assistance, Brown is required to comply
with Title IX.
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. 1681(b) (West
1990). Subsection (b) also provides, however, that it "shall
not be construed to prevent the consideration in any . . .
proceeding under this chapter of statistical evidence tending
to show that such an imbalance exists with respect to the
participation in, or receipt of the benefits of, any such
program or activity by the members of one sex." Id.Applying 1681(b), the prior panel held that Title
IX "does not mandate strict numerical equality between the
gender balance of a college's athletic program and the gender
balance of its student body." Cohen II, 991 F.2d at 894.
The panel explained that, while evidence of a gender-based
disparity in an institution's athletics program is relevant
to a determination of noncompliance, "a court assessing Title
-13-
-13-
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." Id. at
895.
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. 118 Cong. Rec. 5804 (1972) (remarks of Sen.
Bayh); North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523
n.13 (1982).
Title IX was passed with two objectives in mind:
"to avoid the use of federal resources to support
discriminatory practices," and "to provide individual
citizens effective protection against those practices."
Cannon v. University of Chicago, 441 U.S. 677, 704 (1979).
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. 20 U.S.C.
1682.
The agency responsible for administering Title IX
is the United States Department of Education ("DED"), through
-14-
-14-
its Office for Civil Rights ("OCR").5 Congress expressly
delegated to DED the authority to promulgate regulations for
determining whether an athletics program complies with Title
IX. Pub. L. No. 93-380, 88 Stat. 612 (1974).6 The
regulations specifically address athletics at 34 C.F.R.
106.37(c) and 106.41. The regulation at issue in this case,
34 C.F.R. 106.41 (1995), provides:
(a) General. No person shall, on the
basis of sex, be excluded from
participation in, be denied the benefits
of, be treated differently from another
person or otherwise be discriminated
against in any interscholastic,
intercollegiate, club or intramural
athletics offered by a recipient, and no
recipient shall provide any such
athletics separately on such basis.
(b) Separate teams. Notwithstanding
the requirements of paragraph (a) of this
5. Agency responsibility for administration of Title IX
shifted from the Department of Health, Education and Welfare
("HEW") to DED when HEW split into two agencies, DED and the
Department of Health and Human Services. The regulations and
agency documents discussed herein were originally promulgated
by HEW, the administering agency at the time, and later
adopted by the present administering agency, DED. See Cohen
II, 991 F.2d at 895; Cohen III, 879 F. Supp. at 194-95 n.23.
For simplicity, we treat DED as the promulgating agency.
6. HEW apparently received an unprecedented 9,700 comments
on the proposed Title IX athletics regulations, see Haffer v.
Temple Univ. of the Commonwealth Sys. of Higher Educ., 524 F.
Supp. 531, 536 n.9 (1981) (citing Thomas A. Cox,
Intercollegiate Athletics and Title IX, 46 Geo. Wash. L. Rev.
34, 40 (1977) ("Cox")), prompting former HEW Secretary Caspar
Weinberger to remark, "I had not realized until the comment
period that athletics is the single most important thing in
the United States," id. (citing Cox at 34, quoting N.Y.
Times, June 27, 1975, at 16, col. 4).
-15-
-15-
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.
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. For the purposes of this
part, contact sports include boxing,
wrestling, rugby, ice hockey, football,
basketball and other sports the purpose
or major activity of which involves
bodily contact.
c) Equal Opportunity. A recipient
which operates or sponsors
interscholastic, intercollegiate, club or
intramural athletics shall provide equal
athletic opportunity for members of both
sexes. In determining whether equal
opportunities are available the Director
will consider, among other factors:
(1) Whether the selection of sports
and levels of competition effectively
accommodate the interests and abilities
of members of both sexes;
(2) The provision of equipment and
supplies;
(3) Scheduling of games and practice
time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching
and academic tutoring;
(6) Assignment and compensation for
coaches and tutors;
(7) Provision of locker rooms,
practice and competitive facilities;
(8) Provision of medical and
training facilities and services;
(9) Provision of housing and dining
facilities and services;
(10) Publicity.
-16-
-16-
In the first appeal, this court held that an
institution's failure effectively to accommodate both genders
under 106.41(c)(1) is sufficient to establish a violation of
Title IX. Cohen II, 991 F.2d at 897.
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. "In particular, this Policy Interpretation
provides a means to assess an institution's compliance with the
equal opportunity requirements of the regulation which are set
forth at [34 C.F.R. 106.37(c) and 106.41(c)]." 44 Fed. Reg.
at 71,415. After considering a large number of public comments,
OCR published the final Policy Interpretation. 44 Fed. Reg.
71,413-71,423 (1979). While the Policy Interpretation covers
other areas, this litigation focuses on the "Effective
Accommodation" section, which interprets 34 C.F.R.
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. The Policy
Interpretation establishes a three-part test, a two-part test,
and factors to be considered in determining compliance under 34
C.F.R. 106.41(c)(1). At issue in this appeal is the proper
-17-
-17-
interpretation of the first of these, the so-called three-part
test,7 which inquires as follows:
(1) Whether intercollegiate level
participation opportunities for male and
female students are provided in numbers
substantially proportionate to their
respective enrollments; or
(2) Where the members of one sex
have been and are underrepresented among
intercollegiate athletes, whether the
institution can show a history and
continuing practice of program expansion
which is demonstrably responsive to the
developing interest and abilities of the
members of that sex; or
(3) Where the members of one sex
are underrepresented among
intercollegiate athletes, and the
institution cannot show a continuing
practice of program expansion such as
that cited above, whether it can be
demonstrated that the interests and
abilities of the members of that sex have
been fully and effectively accommodated
by the present program.
44 Fed. Reg. at 71,418.
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. at 211. Nor did Brown satisfy prong two. While
acknowledging that Brown "has an impressive history of program
expansion," the district court found that Brown failed to
7. For clarification, we note that the cases refer to each
part of this three-part test as a "prong" or a "benchmark."
Prong one is also called the "substantial proportionality
test."
-18-
-18-
demonstrate that it has "maintained a continuing practice of
intercollegiate program expansion for women, the underrepresented
sex." Id. 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. Id. 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.(quoting the Policy Interpretation, 44 Fed. Reg. at 71,417).
On January 16, 1996, DED released a "Clarification
Memorandum," which does not change the existing standards for
compliance, but which does provide further information and
guidelines for assessing compliance under the three-part test.
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.
The district court found that Brown predetermines the
approximate number of varsity positions available to men and
women, and, thus, that "the concept of any measure of unfilled
but available athletic slots does not comport with reality."
-19-
-19-
Cohen III, 879 F. Supp. at 203 n.36. The district court
concluded that intercollegiate athletics opportunities "means
real opportunities, not illusory ones, and therefore should be
measured by counting actual participants." Id. at 204 (internal
quotation marks and citations omitted).
Title IX is an anti-discrimination statute, modeled
after Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d
("Title VI").8 See Cannon, 441 U.S. at 696 ("The drafters of
Title IX explicitly assumed that it would be interpreted and
applied as Title VI had been during the preceding eight years.").
Thus, Title IX and Title VI share the same constitutional
underpinnings. See Jeffrey H. Orleans, An End To The Odyssey:
Equal Athletic Opportunities For Women, 3 Duke J. Gender L. &
Pol'y 131, 133-34 (1996).
Although the statute itself provides for no remedies
beyond the termination of federal funding, the Supreme Court has
determined that Title IX is enforceable through an implied
private right of action, Cannon, 441 U.S. at 703, and that
damages are available for an action brought under Title IX,
Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992).
The right to injunctive relief under Title IX appears to have
been impliedly accepted by the Supreme Court in Franklin. Id. at
64-66, 71-73. In addition, a majority of the Court in Guardians
8. Title VI prohibits discrimination on the basis of race,
color, or national origin in institutions benefitting from
federal funds.
-20-
-20-
Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983), agreed that
injunctive relief and other equitable remedies are appropriate
for violations of Title VI.
According to the statute's senate sponsor, Title IX
was intended to
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.
118 Cong. Rec. 5808 (1972) (remarks of Sen. Bayh) (quoted
in Haffer, 524 F. Supp. at 541).
III.
III.
In Cohen II, a panel of this court squarely rejected
Brown's constitutional and statutory challenges to the Policy
Interpretation's three-part test, upholding the district court's
interpretation of the Title IX framework applicable to
intercollegiate athletics, Cohen II, 991 F.2d at 899-902, as well
as its grant of a preliminary injunction in favor of the
plaintiffs, id. at 906-07. Despite the fact that it presents
substantially the same legal arguments in this appeal as were
raised and decided in the prior appeal, Brown asserts that there
is "no impediment" to this court's plenary review of these
decided issues. We disagree.
The law of the case doctrine precludes relitigation
of the legal issues presented in successive stages of a single
-21-
-21-
case once those issues have been decided. See 1B James W. Moore
et al., Moore's Federal Practice 0.404[1] (2d ed. 1993)
(hereinafter "Moore"). "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. Co. v.
Walbrook Ins. Co., 41 F.3d 764, 769 (1st. Cir. 1994) (citing
United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert.
denied, 502 U.S. 862 (1991)). The reviewing court's mandate
"constitutes the law of the case on such issues of law as were
actually considered and decided by the appellate court, or as
were necessarily inferred from the disposition on appeal."
Commercial Union Ins. Co., 41 F.3d at 770 (citing 1B Moore at
0.404[10]). 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).
-22-
-22-
While we have acknowledged that there are exceptions
to the law of the case doctrine, we have emphasized that the
circumstances in which they apply are rare. As have a number of
other circuits, we have determined that issues decided on appeal
should not be reopened "'unless the evidence on a subsequent
trial was substantially different, controlling authority has
since made a contrary decision of law applicable to such issues,
or the decision was clearly erroneous and would work a manifest
injustice.'" Rivera-Martinez, 931 F.2d at 151 (quoting White v.
Murtha, 377 F.2d 428, 432 (5th Cir. 1967)) (other citations
omitted).
Brown's argument that the Supreme Court's recent
decision in Adarand Constr., Inc. v. Pena, --- U.S. ---, 115 S.
Ct. 2097 (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.
We have narrowly confined the "intervening
controlling authority exception" to Supreme Court opinions, en
banc opinions of this court, or statutory overrulings. Irving,
49 F.3d at 834. We have also recognized that this exception may
apply "in those rare situations where newly emergent authority,
although not directly controlling, nevertheless offers a
-23-
-23-
convincing reason for believing that the earlier panel, in light
of the neoteric developments, would change its course." Id.(internal quotation marks and citation omitted).
The law of the case doctrine is a prudential rule of
policy and practice, rather than "an absolute bar to
reconsideration []or a limitation on a federal court's power."
Rivera-Martinez, 931 F.2d at 150-51. Thus, we have not construed
the doctrine as "an inflexible straitjacket that invariably
requires rigid compliance." Northeast Utils. Serv. Co. v.
Federal Energy Regulatory Comm'n, 55 F.3d 686, 688 (1st Cir.
1995). Nevertheless, the doctrine serves important goals and
must be "treated respectfully and, in the absence of exceptional
circumstances, applied according to its tenor." Rivera-Martinez,
931 F.2d at 151. 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. See id.; 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. But any such departure 'demands
special justification.'") (quoting Arizona v. Rumsey, 467 U.S.
203, 212 (1984)).9
9. The law of the case doctrine is "akin to the doctrines of
collateral estoppel, res judicata, and stare decisis," Joan
Steinman, Law Of The Case: A Judicial Puzzle In Consolidated
And Transferred Cases And In MultiDistrict Litigation, 135 U.
Penn. L. Rev. 595, 598-99 (1987) (footnotes omitted), and
-24-
-24-
For the reasons that follow, we conclude that no
exception to the law of the case doctrine applies here and,
therefore, that Cohen II's rulings of law control the disposition
of this appeal.
Brown contends that stare decisis does not bind this
panel "to the previous preliminary ruling of this Court because
it lacks the element of finality," Reply Br. at 24, and that the
law of the case doctrine does not prevent a court from "changing
its mind," id. at n.47.
We acknowledge that we have repeatedly emphasized
that conclusions and holdings regarding the merits of issues
presented on appeal from a grant of a preliminary injunction are
to be understood as statements as to probable outcomes. E.g.,
A.M. Capen's Co. v. American Trading and Prod. Co., 74 F.3d 317,
322 (1st Cir. 1996); Narragansett Indian Tribe v. Guilbert, 934
F.2d 4, 6 (1st Cir. 1991). 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-
"has been said to lie half way between stare decisis and res
judicata," 1B Moore at 0.404[1] n.3 (internal quotation
marks and citation omitted). As applied in the federal
courts today, the law of the case doctrine more closely
resembles the doctrine of stare decisis. 1B Moore at
0.404[1]. 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. at
II-2.
-25-
-25-
developed record. In this case, however, the record before the
prior panel was "sufficiently developed and the facts necessary
to shape the proper legal matrix [we]re sufficiently clear,"
Cohen II, 991 F.2d at 904, and nothing in the record subsequently
developed at trial constitutes substantially different evidence
that might undermine the validity of the prior panel's rulings of
law. 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. Further, as the
district court noted in its opinion after the trial on the
merits, "[n]othing in the record before me, now fully developed,
undermines the considered legal framework established by the
First Circuit at the preliminary injunction stage." Cohen III,
879 F. Supp. at 194.
Brown offers remarkably little in the way of analysis
or authority to support its blithe contention that we are free to
disregard Cohen II in disposing of this appeal. 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
-26-
-26-
contrary to the law enunciated in Cohen II (which it clearly is
not). Finding Brown's bare assertions to be unpersuasive, we
decline the invitation to this court to "change its mind." The
precedent established by the prior panel is not clearly
erroneous; it is the law of this case and the law of this
circuit.
IV.
IV.
Brown contends that the district court misconstrued
and misapplied the three-part test. 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. Brown asserts, in
the alternative, that if the district court properly construed
the test, then the test itself violates Title IX and the United
States Constitution.
We emphasize two points at the outset. First,
notwithstanding Brown's persistent invocation of the inflammatory
terms "affirmative action," "preference," and "quota," this is
not an affirmative action case. Second, Brown's efforts to evade
the controlling authority of Cohen II by recasting its core legal
arguments as challenges to the "district court's interpretation"
of the law are unavailing; the primary arguments raised here have
-27-
-27-
already been litigated and decided adversely to Brown in the
prior appeal.
A.
A.
Brown's talismanic incantation of "affirmative
action" has no legal application to this case and is not helpful
to Brown's cause. While "affirmative action" may have different
connotations as a matter of politics, as a matter of law, its
meaning is more circumscribed. 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. See Adarand, ---
U.S. ---, 115 S. Ct. 2097 (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,
10. Cases and commentators sometimes treat cases involving
involuntarily implemented plans -- e.g., plans adopted
pursuant to a consent decree or a contempt order -- as
affirmative action cases. See, e.g., United States v.
Paradise, 480 U.S. 149 (1987) (upholding a "one-black-for-
one-white" promotion requirement ordered by a district court
as an interim measure in response to proven discrimination by
a state employer); Sheet Metal Workers v. EEOC, 478 U.S. 421(1986) (upholding a federal district court's imposition on
the union a goal for racial minority membership as a remedy
for the union's contempt of the court's earlier orders to
cease racially discriminatory admissions practices).
-28-
-28-
497 U.S. 547 (1990) (upholding a federal program requiring race-
based preferences); City of Richmond v. J.A. Croson Co., 488 U.S.
469 (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 (1986) (upholding a temporary
program authorizing a county agency to consider sex and race as
factors in making promotions in order to achieve a statistically
measurable improvement in the representation of women and
minorities in major job classifications in which they had been
historically underrepresented); Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986) (striking down a collective-bargaining
faculty lay-off provision requiring preferential treatment for
certain racial minorities); Fullilove v. Klutznick, 448 U.S. 448(1980) (upholding a federal program requiring state and local
recipients of federal public works grants to set aside 10% of
funds for procuring goods and services from minority business
enterprises); United Steelworkers v. Weber, 443 U.S. 193 (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. v. Bakke, 438 U.S. 265(1978) (striking down a state medical school's admissions policy
that set aside 16 of its places for racial minorities).
-29-
-29-
Title IX is not an affirmative action statute; it is
an anti-discrimination statute, modeled explicitly after another
anti-discrimination statute, Title VI. 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.
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. Consistent with the
school desegregation cases, the question of substantial
proportionality under the Policy Interpretation's three-part test
11. As previously noted, Title IX itself specifies only that
the statute shall not be interpreted to require gender-based
preferential or disparate treatment. 20 U.S.C. 1681(b).
However, although Congress could easily have done so, it did
not ban affirmative action or gender-conscious remedies under
Title IX. See also Weber, 443 U.S. at 201-02 (construing the
prohibition against race discrimination contained in
703(a) and (d) of Title VII, and concluding that "an
interpretation of the sections that forbade all race-
conscious affirmative action would bring about an end
completely at variance with the purpose of the statute and
must be rejected") (internal quotation marks and citations
omitted); id. at 205-06 (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. 106.3, and by the Policy Interpretation, 44 Fed.
Reg. at 71,416.
-30-
-30-
is merely the starting point for analysis, rather than the
conclusion; a rebuttable presumption, rather than an inflexible
requirement. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1, 25 (1971). In short, the substantial
proportionality test is but one aspect of the inquiry into
whether an institution's athletics program complies with Title
IX.
Also consistent with the school desegregation cases,
the substantial proportionality test of prong one is applied
under the Title IX framework, not mechanically, but case-by-case,
in a fact-specific manner. 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. See Missouri v. Jenkins, --- U.S. ---, ---, 115 S. Ct.
2038, 2048 (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 (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(holding that Title VII does not prohibit private employers from
-31-
-31-
voluntarily implementing race-conscious measures to eliminate
"manifest racial imbalances in traditionally segregated job
categories"); McDaniel v. Barresi, 402 U.S. 39, 41 (1971)
(recognizing that measures required to remedy race discrimination
"will almost invariably require" race-conscious classifications,
and that "[a]ny other approach would freeze the status quo that
is the very target of all desegregation processes").
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. In reviewing equal protection
challenges to such plans, the Court is concerned that government
bodies are reaching out to implement race- or gender-conscious
remedial measures that are "ageless in their reach into the past,
and timeless in their ability to affect the future," Wygant, 476
U.S. at 276, on the basis of facts insufficient to support a
prima facie case of a constitutional or statutory violation,
Croson, 488 U.S. at 500, to the benefit of unidentified victims
of past discrimination, see id. at 469; Wygant, 476 U.S. at 276.
Accordingly, the Court has taken the position that voluntary
affirmative action plans cannot be constitutionally justified
absent a particularized factual predicate demonstrating the
-32-
-32-
existence of "identified discrimination," see Croson, 488 U.S. at
500-06, because "[s]ocietal discrimination, without more, is too
amorphous a basis for imposing a racially classified remedy,"
Wygant, 476 U.S. at 276.
From a constitutional standpoint, the case before us
is altogether different. 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. The
factual problem presented in affirmative action cases is, "Does
the evidence support a finding of discrimination such that race-
or gender-conscious remedial measures are appropriate?" We find
these multiple indicia of reliability and specificity to be
sufficient to answer that question in the affirmative.
From the mere fact that a remedy flowing from a
judicial determination of discrimination is gender-conscious, it
does not follow that the remedy constitutes "affirmative action."
Nor does a "reverse discrimination" claim arise every time an
anti-discrimination statute is enforced. While some gender-
conscious relief may adversely impact one gender -- a fact that
has not been demonstrated in this case -- that alone would not
-33-
-33-
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. See Miller v. Johnson, --- U.S. ---, --
-, 115 S. Ct. 2475, 2491 (1995) ("compliance with federal
antidiscrimination laws cannot justify race-based districting
where the challenged district was not reasonably necessary under
a constitutional reading and application of those laws") (citing
Shaw v. Reno, 509 U.S. 630, 653-54 (1993)).
B.
B.
Cohen II squarely rejected Brown's interpretation of
the three-part test and carefully delineated its own, which is
now the law of this circuit as well as the law of this case. On
remand, the district court's liability analysis explicitly and
faithfully adhered to Cohen II's mandate, and we are bound to do
the same at this stage of the litigation, absent one of the
exceptional circumstances discussed supra. Because the precise
questions presented regarding the proper interpretation of the
Title IX framework were considered and decided by a panel of this
court in the prior appeal, and because no exception to the law of
the case doctrine is presented, we have no occasion to reopen the
issue here. Brown's rehashed statutory challenge is foreclosed
by the law of the case doctrine and we are therefore bound by the
-34-
-34-
prior panel's interpretation of the statute, the regulation, and
the relevant agency pronouncements.
In its liability analysis, the district court
expressly accepted Cohen II's elucidation of the applicable law,
Cohen III, 879 F. Supp. at 194, and applied the law in accordance
with its mandate, id. at 210-13. Indeed, every circuit court to
have reviewed a Title IX claim of discrimination in athletics
since Cohen II was decided is in accord with its explication of
the Title IX regime as it applies to athletics. See Horner v.
Kentucky High Sch. Athletics Ass'n, 43 F.3d 265 (6th Cir. 1994);
Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir. 1994), cert.
denied, --- U.S. ---, 115 S. Ct. 938 (1995); Favia v. Indiana
Univ. of Pa., 7 F.3d 332 (3d Cir. 1993); Roberts v. Colorado
State Bd. of Agric., 998 F.2d 824 (10th Cir.), cert. denied, 510
U.S. 1004 (1993).
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. Brown argues that the district court erred in
concluding that it was obligated to give substantial deference to
the Policy Interpretation, on the ground that "the interpretation
is not a worthy candidate for deference," Reply Br. 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
-35-
-35-
addition, is bad policy," id. 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.
The Policy Interpretation represents the responsible
agency's interpretation of the intercollegiate athletics
provisions of Title IX and its implementing regulations. 44 Fed.
Reg. at 71,413. 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 (1984). It is also well
established "'that an agency's construction of its own
regulations is entitled to substantial deference.'" Martin v.
Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150
(1991) (quoting Lyng v. Payne, 476 U.S. 926, 939 (1986)) (other
citation omitted). As the Supreme Court has explained,
"[b]ecause applying an agency's regulation to complex or changing
circumstances calls upon the agency's unique expertise and
policymaking prerogatives, we presume that the power
authoritatively to interpret its own regulations is a component
of the agency's delegated lawmaking powers." Martin, 499 U.S. at
151 (citation omitted).
-36-
-36-
Applying these principles, Cohen II held that the
applicable regulation, 34 C.F.R. 106.41, deserves controlling
weight, 991 F.2d at 895; that the Policy Interpretation warrants
substantial deference, id. 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. at 899 (citations omitted). Accord
Horner, 43 F.3d at 274-75; Kelley, 35 F.3d at 270; Favia v.
Indiana Univ. of Pa., 812 F. Supp. 578, 584 (W.D. Pa.), aff'd, 7
F.3d 332 (3d Cir. 1993). On remand, the district court properly
applied the legal framework elucidated in Cohen II and explicitly
followed this court's mandate in according controlling weight to
the regulation and substantial deference to the Policy
Interpretation. Cohen III, 879 F. Supp. 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"). We hold that the district court did not err in the degree
of deference it accorded the regulation and the relevant agency
pronouncements.
C.
C.
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. Cohen III, 879 F. Supp.
-37-
-37-
at 202. The Policy Interpretation was designed specifically for
intercollegiate athletics.12 44 Fed. Reg. at 71,413. Because the
athletics regulation distinguishes between club sports and
intercollegiate sports, under the Policy Interpretation, "club
teams will not be considered to be intercollegiate teams except
in those instances where they regularly participate in varsity
competition." Id. at n.1. Accordingly, the district court
excluded club varsity teams from the definition of
"intercollegiate teams" and, therefore, from the calculation of
participation opportunities, because the evidence was inadequate
to show that the club teams regularly participated in varsity
competition. Cohen III, 879 F. Supp. at 200.
The district court's definition of athletics
participation opportunities comports with the agency's own
definition. See Clarification Memorandum at 2 ("In determining
participation opportunities, OCR counts the number of actual
athletes participating in the athletic program."). We find no
error in the district court's definition and calculation of the
intercollegiate athletics participation opportunities afforded to
Brown students, and no error in the court's finding of a 13.01%
disparity between the percentage of women participating in
12. Application of the Policy Interpretation is not limited
to intercollegiate athletics, however. The Policy
Interpretation states that "its general principles will often
apply to club, intramural, and interscholastic athletic
programs, which are also covered by the regulation." 44 Fed.
Reg. at 71,413.
-38-
-38-
intercollegiate varsity athletics at Brown and the percentage of
women in Brown's undergraduate student body.
D.
D.
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. 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.
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. With respect to prong
three, Brown asserts that the district court's interpretation of
the word "fully" "requires universities to favor women's teams
and treat them better than men's [teams]. . . . forces them to
13. We note that Brown presses its relative interests
argument under both prong one and prong three. At trial,
Brown argued that, "in order to succeed on prong one,
plaintiffs bear the burden of proving that the percentage of
women among varsity athletes is not substantially
proportionate to the percentage of women among students
interested in participating in varsity athletics." Cohen
III, 879 F. Supp. at 205. At the preliminary injunction
stage, Brown propounded the same relative interests argument
under prong three. Id. at n.41.
-39-
-39-
eliminate or cap men's teams. . . . [and] forces universities to
impose athletic quotas in excess of relative interests and
abilities." Appellant's Br. at 55.
The prior panel considered and rejected Brown's
approach, observing that "Brown reads the 'full' out of the duty
to accommodate 'fully and effectively.'" Cohen II, 991 F.2d at
899. Under Cohen II's controlling interpretation, prong three
"demands not merely some accommodation, but full and effective
accommodation. 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. at 898.
Brown's interpretation of full and effective
accommodation is "simply not the law." Cohen III, 879 F. Supp.
at 208. 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 209. 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.
-40-
-40-
Brown argues that the district court's interpretation
of the three-part test requires numerical proportionality, thus
imposing a gender-based quota scheme in contravention of the
statute. This argument rests, in part, upon Brown's reading of
20 U.S.C. 1681(b) as a categorical proscription against
consideration of gender parity. 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 .
. . .
20 U.S.C.A. 1681(b) (West 1990) (emphasis added).
The prior panel, like Brown, assumed without analysis
that 1681(b) applies unequivocally to intercollegiate athletics
programs. We do not question Cohen II's application of
1681(b). We think it important to bear in mind, however, the
congressional concerns that inform the proper interpretation of
this provision. Section 1681(b) was patterned after 703(j) of
Title VII, 42 U.S.C. 2000e-2(j), and was specifically designed
to prohibit quotas in university admissions and hiring, based
upon the percentage of individuals of one gender in a
geographical community. See H.R. Rep. No. 554, 92d Cong., 1st
Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 2462, 2590-92
-41-
-41-
(Additional Views); 117 Cong. Rec. 39,261-62 (1971) (remarks of
Rep. Quie); 117 Cong. Rec. 30,406, 30,409 (remarks of Sen. Bayh);
117 Cong. Rec. 39,251-52 (remarks of Rep. Mink and Rep. Green).
Thus, the legislative history strongly suggests that the
underscored language defines what is proscribed (in the contexts
of admissions and hiring) in terms of a geographical area, beyond
the institution, and does not refer to an imbalance within the
university, with respect to the representation of each gender in
intercollegiate athletics, as compared to the gender makeup of
the student body.
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.
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.
The test is also entirely consistent with 1681(b)
as applied by the prior panel and by the district court. 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
-42-
-42-
athletic programs, on the other hand." 991 F.2d at 895. 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. at 901, but also "that a second
element -- unmet interest -- is present," id., meaning that the
underrepresented gender has not been fully and effectively
accommodated by the institution's present athletic program, id.
at 902 (citing 44 Fed. Reg. at 71,418). Only where the plaintiff
meets the burden of proof on these elements and the institution
fails to show as an affirmative defense a history and continuing
practice of program expansion responsive to the interests and
abilities of the underrepresented gender will liability be
established. Surely this is a far cry from a one-step imposition
of a gender-based quota.
Brown simply ignores the fact that it is required to
accommodate fully the interests and abilities of the
underrepresented gender, not because the three-part test mandates
preferential treatment for women ab initio, but because Brown has
been found (under prong one) to have allocated its athletics
participation opportunities so as to create a significant gender-
based disparity with respect to these opportunities, and has
failed (under prong two) to show a history and continuing
practice of expansion of opportunities for the underrepresented
-43-
-43-
gender. 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. In
short, Brown treats the three-part test for compliance as a one-
part test for strict liability.
Brown also fails to recognize that Title IX's
remedial focus is, quite properly, not on the overrepresented
gender, but on the underrepresented gender; in this case, women.
Title IX and its implementing regulations protect the class for
whose special benefit the statute was enacted. See Cannon, 441
U.S. at 694. It is women and not men who have historically and
who continue to be underrepresented in sports, not only at Brown,
but at universities nationwide. See Williams v. School Dist. of
Bethlehem, Pa., 998 F.2d 168, 175 (1993) (observing that,
although Title IX and its regulations apply equally to boys and
girls, "it would require blinders to ignore that the motivation
for promulgation of the regulation on athletics was the historic
emphasis on boys' athletic programs to the exclusion of girls'
athletic programs in high schools as well as colleges"), cert.
denied, 510 U.S. 1043 (1994).
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. Instead, the law requires that, absent a
-44-
-44-
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. Id. In other words,
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. To do so, the
school must fully and effectively
accommodate the underrepresented gender's
interests and abilities, even if that
requires it to give the underrepresented
gender (in this case, women) what amounts
to a larger slice of a shrinking
athletic-opportunity pie.
Id. at 906.
We think it clear that neither the Title IX framework
nor the district court's interpretation of it mandates a gender-
based quota scheme. 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. To adopt the
relative interests approach would be, not only to overrule Cohen
II, but to rewrite the enforcing agency's interpretation of its
own regulation so as to incorporate an entirely different
standard for Title IX compliance. This relative interests
-45-
-45-
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. According to Brown's relative interests
interpretation of the equal accommodation principle, the gender-
based disparity in athletics participation opportunities at Brown
is due to a lack of interest on the part of its female students,
rather than to discrimination, and any attempt to remedy the
disparity is, by definition, an unlawful quota. This approach is
entirely contrary to "Congress's unmistakably clear mandate that
educational institutions not use federal monies to perpetuate
gender-based discrimination," id. at 907, and makes it virtually
impossible to effectuate Congress's intent to eliminate sex
discrimination in intercollegiate athletics.
E.
E.
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.
The district court rejected the analogy to Title VII, noting
that, while Title VII "seeks to determine whether gender-neutral
job openings have been filled without regard to gender[,] Title
IX . . . was designed to address the reality that sports teams,
unlike the vast majority of jobs, do have official gender
requirements, and this statute accordingly approaches the concept
-46-
-46-
of discrimination differently from Title VII." Cohen III, 879 F.
Supp. at 205.
It does not follow from the fact that 1681(b) was
patterned after a Title VII provision that Title VII standards
should be applied to a Title IX analysis of whether an
intercollegiate athletics program equally accommodates both
genders, as Brown contends. While this court has approved the
importation of Title VII standards into Title IX analysis, we
have explicitly limited the crossover to the employment context.
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. denied, ---
U.S. ---, 116 S. Ct. 1044 (1996).
As Cohen II recognized, "[t]he scope and purpose of
Title IX, which merely conditions government grants to
educational institutions, are substantially different from those
of Title VII, which sets basic employment standards." 991 F.2d
at 902 (citation omitted). "[W]hereas Title VII is largely
peremptory," Title IX is "largely aspirational," and thus, a
"loosely laced buskin." Id.; see also North Haven, 456 U.S. at
521 (directing that Title IX must be accorded "a sweep as broad
as its language").
-47-
-47-
It is imperative to recognize that athletics presents
a distinctly different situation from admissions and employment
and requires a different analysis in order to determine the
existence vel non of discrimination. 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-
14. See 34 C.F.R. 106.41(b) (1995) ("[A] recipient may
operate or sponsor separate teams for members of each sex
where selection for such teams is based upon competitive
skill or the activity involved is a contact sport.")
(emphasis added). 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.
While this case presents only the example of members of the
underrepresented gender seeking the opportunity to
participate on single-sex teams, the same analysis would
apply where members of the underrepresented gender sought
opportunities to play on co-ed teams.
-48-
-48-
segregated athletics programs, men and women do not compete
against each other for places on team rosters. Accordingly, and
notwithstanding Brown's protestations to the contrary, the Title
VII concept of the "qualified pool" has no place in a Title IX
analysis of equal opportunities for male and female athletes
because women are not "qualified" to compete for positions on
men's teams, and vice-versa. In addition, the concept of
"preference" does not have the same meaning, or raise the same
equality concerns, as it does in the employment and admissions
contexts.
Brown's approach fails to recognize that, because
gender-segregated teams are the norm in intercollegiate athletics
programs, athletics differs from admissions and employment in
analytically material ways. 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. For this reason, and because
recruitment of interested athletes is at the discretion of the
institution, there is a risk that the institution will recruit
only enough women to fill positions in a program that already
underrepresents women, and that the smaller size of the women's
program will have the effect of discouraging women's
participation.
-49-
-49-
In this unique context, Title IX operates to ensure
that the gender-segregated allocation of athletics opportunities
does not disadvantage either gender. Rather than create a quota
or preference, this unavoidably gender-conscious comparison
merely provides for the allocation of athletics resources and
participation opportunities between the sexes in a non-
discriminatory manner. As the Seventh Circuit observed,
"Congress itself recognized that addressing discrimination in
athletics presented a unique set of problems not raised in areas
such as employment and academics." Kelley, 35 F.3d at 270
(citing Sex Discrimination Regulations, Hearings Before the
Subcommittee on Post Secondary Education of the Committee on
Education and Labor, 94th Cong., 1st Sess. at 46, 54, 125, 129,
152, 177, 299-300 (1975); 118 Cong. Rec. 5807 (1972) (statement
of Sen. Bayh); 117 Cong. Rec. 30,407 (1971) (same)).
In contrast to the employment and admissions
contexts, in the athletics context, gender is not an irrelevant
characteristic. 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. As the Kelley Court pointed out (in
-50-
-50-
the context of analyzing the deference due the relevant athletics
regulation and the Policy Interpretation):
Undoubtedly the agency responsible for
enforcement of the statute could have
required schools to sponsor a women's
program for every men's program offered
and vice versa. . . . It was not
unreasonable, however, for the agency to
reject this course of action. Requiring
parallel teams is a rigid approach that
denies schools the flexibility to respond
to the differing athletic interests of
men and women. It was perfectly
acceptable, therefore, for the agency to
chart a different course and adopt an
enforcement scheme that measures
compliance by analyzing how a school has
allocated its various athletic resources.
Kelley, 35 F.3d at 271 (footnotes omitted).
Each prong of the Policy Interpretation's three-part
test determines compliance in this manner.
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. And if
compliance with Title IX is to be
measured through this sort of analysis,
it is only practical that schools be
given some clear way to establish that
they have satisfied the requirements of
the statute. The substantial
proportionality contained in Benchmark 1
merely establishes such a safe harbor.
Id. (citations omitted).
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. See
-51-
-51-
Cohen II, 991 F.2d at 901 ("[T]here is no need to search for
analogies where, as in the Title IX milieu, the controlling
statutes and regulations are clear."). We conclude that the
district court's application of the three-part test does not
create a gender-based quota and is consistent with Title IX, 34
C.F.R. 106.41, the Policy Interpretation, and the mandate of
Cohen II.
F.
F.
Brown has contended throughout this litigation that
the significant disparity in athletics opportunities for men and
women at Brown is the result of a gender-based differential in
the level of interest in sports and that the district court's
application of the three-part test requires universities to
provide athletics opportunities for women to an extent that
exceeds their relative interests and abilities in sports. 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.
We view Brown's argument that women are less
interested than men in participating in intercollegiate
-52-
-52-
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. To
assert that Title IX permits institutions to provide fewer
athletics participation opportunities for women than for men,
based upon the premise that women are less interested in sports
than are men, is (among other things) to ignore the fact that
Title IX was enacted in order to remedy discrimination that
results from stereotyped notions of women's interests and
abilities.
Interest and ability rarely develop in a vacuum; they
evolve as a function of opportunity and experience. The Policy
Interpretation recognizes that women's lower rate of
participation in athletics reflects women's historical lack of
opportunities to participate in sports. See 44 Fed. Reg. at
71,419 ("Participation in intercollegiate sports has historically
been emphasized for men but not women. Partially as a
consequence of this, participation rates of women are far below
those of men.").
Moreover, the Supreme Court has repeatedly condemned
gender-based discrimination based upon "archaic and overbroad
generalizations" about women. Schlesinger v. Ballard, 419 U.S.
498, 508 (1975). See, e.g., Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 725 (1982); Califano v. Webster, 430 U.S.
-53-
-53-
313, 317 (1977); Frontiero v. Richardson, 411 U.S. 677, 684-86
(1973). The Court has been especially critical of the use of
statistical evidence offered to prove generalized, stereotypical
notions about men and women. For example, in holding that
Oklahoma's 3.2% beer statute invidiously discriminated against
males 18-20 years of age, the Court in Craig v. Boren, 429 U.S.
190, 208-209 (1976), stressed that "the principles embodied in
the Equal Protection Clause are not to be rendered inapplicable
by statistically measured but loose-fitting generalities." See
also id. at 202 ("statistics exhibit a variety of . . .
shortcomings that seriously impugn their value to equal
protection analysis"); id. at 204 ("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 (observing with respect to the relevance of the University of
Chicago's statistical evidence regarding the small number of
female applicants to its medical school, in comparison to male
applicants, that "the dampening impact of a discriminatory rule
may undermine the relevance of figures relating to actual
applicants").
Thus, there exists the danger that, rather than
providing a true measure of women's interest in sports,
statistical evidence purporting to reflect women's interest
instead provides only a measure of the very discrimination that
-54-
-54-
is and has been the basis for women's lack of opportunity to
participate in sports. 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
15. Under the Policy Interpretation,
Institutions may determine the athletic
interests and abilities of students by
nondiscriminatory methods of their
choosing provided:
a. The processes take into
account the nationally
increasing levels of women's
interests and abilities;
b. The methods of
determining interest and
ability do not disadvantage the
members of an underrepresented
sex;
c. The methods of
determining ability take into
account team performance
records; and
d. The methods are
responsive to the expressed
interests of students capable
of intercollegiate competition
who are members of an
underrepresented sex.
44 Fed. Reg. 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. 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
-55-
-55-
lack-of-interest defense to become the instrument of further
discrimination against the underrepresented gender would pervert
the remedial purpose of Title IX. 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. Furthermore, such evidence is completely
irrelevant where, as here, viable and successful women's varsity
teams have been demoted or eliminated. We emphasize that, on the
facts of this case, Brown's lack-of-interest arguments are of no
consequence. 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
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, 897 F. Supp. at 210 n.51;
see 1990 Investigator's Manual at 27 (explaining that a
survey or assessment of interests and abilities is not
required by the Title IX regulation or the Policy
Interpretation but may be required as part of a remedy when
OCR has concluded that an institution's current program does
not equally effectively accommodate the interests and
abilities of students). (We note that the text of the 1990
Investigator's Manual cited herein at page 25 was apparently
at page 27 of the copy of the Manual before the district
court.)
-56-
-56-
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. at 992 ("Brown is cutting off varsity
opportunities where there is great interest and talent, and where
Brown still has an imbalance between men and women varsity
athletes in relation to their undergraduate enrollments.").
On these facts, Brown's failure to accommodate fully
and effectively the interests and abilities of the
underrepresented gender is clearly established. 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 8-9 n.2 ("While [other] indications of interest may be
helpful to OCR in ascertaining likely interest on campus,
particularly in the absence of more direct indicia[,] an
16. 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. Cohen III, 879 F. Supp. at 190.
-57-
-57-
institution is expected to meet the actual interests and
abilities of its students and admitted students."). Under these
circumstances, the district court's finding that there are
interested women able to compete at the university-funded varsity
level, Cohen III, 879 F. Supp. at 212, is clearly correct.
Finally, the tremendous growth in women's
participation in sports since Title IX was enacted disproves
Brown's argument that women are less interested in sports for
reasons unrelated to lack of opportunity. See, e.g., Mike Tharp
et al., Sports crazy! Ready, set, go. 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").
Brown's relative interests approach is not a
reasonable interpretation of the three-part test. 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.
Instead, this approach freezes that disparity by law, thereby
disadvantaging further the underrepresented gender. 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.
-58-
-58-
V.
V.
In the first appeal, this court rejected Brown's
Fifth Amendment equal protection challenge to the statutory
scheme. Cohen II, 991 F.2d at 900-901. Here, Brown argues that
its challenge is to the decision of the district court. As Brown
puts it, "[t]he [equal protection] violation arises from the
court's holding that Title IX requires the imposition of quotas,
preferential treatment, and disparate treatment in the absence of
a compelling state interest and a determination that the remedial
measure is 'narrowly tailored' to serve that interest." Reply
Br. at 18 (citing Adarand, --- U.S. at ---, 115 S. Ct. at 2117).
A.
A.
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. We reject both premises.17 Brown's implicit
17. We assume, without deciding, that Brown has not waived
its equal protection claim and has standing to raise it.
Appellees argue that this claim is waived because Brown did
not raise it in the district court. Appellee's Br. at 55
(citing Desjardins v. Van Buren Community Hosp., 969 F.2d
1280, 1282 (1st Cir. 1992)). Appellees also argue that, to
the extent that the equal protection claim is viable, Brown
-59-
-59-
reliance on Adarand as contrary intervening controlling authority
that warrants a departure from the law of the case doctrine is
misplaced because, while Adarand does make new law, the law it
makes is wholly irrelevant to the disposition of this appeal,
and, even if Adarand did apply, it does not mandate the level of
scrutiny to be applied to gender-conscious government action.
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. The panel cited as authority Metro
Broadcasting, 497 U.S. at 565-66 (for the proposition that
"Congress need not make specific findings of discrimination to
grant race-conscious relief"), and Califano v. Webster, 430 U.S.
at 317 (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'"). Cohen II, 991 F.2d at 901. The
panel also noted that, in spite of the scant legislative history
regarding Title IX as it applies to athletics, Congress heard a
great deal of testimony regarding discrimination against women in
higher education and acted to reverse the Supreme Court's
decision in Grove City College v. Bell, 465 U.S. 555, 573-74
lacks standing to raise it. Appellee's Br. at 56 (citing
Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 1370-71
(1991)). Given our disposition of this claim, we do not
address these arguments.
-60-
-60-
(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. Cohen II, 991 F.2d at 901.
In Metro Broadcasting, the Court upheld two federally
mandated race-based preference policies under intermediate
scrutiny. 497 U.S. at 564-65 (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"). The Metro Broadcasting Court
applied intermediate scrutiny, notwithstanding that the previous
year, in Croson, 488 U.S. 469, the Court applied strict scrutiny
in striking down a municipal minority set-aside program for city
construction contracts. 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
18. In Fullilove, a plurality of the Court applied a
standard subsequently acknowledged to be intermediate
scrutiny, see Metro Broadcasting, 497 U.S. at 564, 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. 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.
-61-
-61-
to a different standard than such classifications prescribed by
state and local governments." Metro Broadcasting, 497 U.S. at
565.
Adarand overruled Metro Broadcasting to the extent
that Metro Broadcasting is inconsistent with Adarand's holding
that "all racial classifications, imposed by whatever federal,
state, or local government actor, must be analyzed by a reviewing
court under strict scrutiny." Adarand, --- U.S. at ---, 115 S.
Ct. at 2113. Brown impliedly assumes that Adarand's partial
overruling of Metro Broadcasting invalidates the prior panel's
disposition of Brown's equal protection challenge by virtue of
its passing citation to Metro Broadcasting. 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
B.
B.
The prior panel rejected Brown's Fifth Amendment
equal protection20 and "affirmative action" challenges to the
19. 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. Moreover, Webster, which Cohen II cited along with
Metro Broadcasting, was not overruled or in any way rendered
suspect by Adarand.
20. It is well settled that the reach of the equal
protection guarantee of the Fifth Amendment Due Process
Clause -- the basis for Brown's equal protection claim -- is
coextensive with that of the Fourteenth Amendment Equal
-62-
-62-
statutory scheme. Cohen II, 991 F.2d at 901 (finding no
constitutional infirmity, assuming arguendo, that the regulation
creates a classification somewhat in favor of women). Thus, to
the extent that Brown challenges the statutory scheme itself,
that challenge is foreclosed under the law of the case doctrine.
Nevertheless, the remedy ordered for a violation of a federal
anti-discrimination statute is still subject to equal protection
review, assuming that it constitutes gender-conscious government
action. See Miller, --- U.S. at ---, 115 S. Ct. at 2491.
Therefore, we review the constitutionality of the district
court's order requiring Brown to comply with Title IX by
accommodating fully and effectively the athletics interests and
abilities of its women students. Because the challenged
classification is gender-based, it must be analyzed under the
intermediate scrutiny test. Before proceeding to the analysis,
however, we must first address Brown's challenge to the standard
of review.
Brown concedes that Adarand "does not, in partially
overruling Metro Broadcasting, set forth the proper standard of
review for this case." Appellant's Br. at 29. Nevertheless,
Brown asserts that "[w]hile Adarand is a case involving racial
classification, its analysis clearly applies to gender
classification as well." Id. at 27. Further, inappropriately
Protection Clause. E.g., United States v. Paradise, 480 U.S.
at 166 n.16; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2
(1975).
-63-
-63-
relying on Frontiero, 411 U.S. 677, and Croson, 488 U.S. 469,
Brown concludes that strict scrutiny applies to gender-based
classifications.21 Appellant's Br. at 29; Reply Br. at 19-20.
These conclusory assertions do not comport with the law in this
circuit.
First, as explained earlier, Adarand and Croson apply
to review of legislative affirmative action schemes. This case
presents the issue of the legality of a federal district court's
determination, based upon adjudicated findings of fact, that a
federal anti-discrimination statute has been violated, and of the
21. 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. 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. 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. As noted previously, Croson is an affirmative
action case and does not control review of a judicial
determination that a federal anti-discrimination statute has
been violated. 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. As we have explained, Croson's factual concerns
are not raised by a district court's determination --
predicated upon duly adjudicated factual findings bearing
multiple indicia of reliability and specificity -- of gender
discrimination in violation of a federal statute. We also
point out that Adarand did not reach the question of the
sufficiency of the factual predicate required to satisfy
strict scrutiny review of a congressionally mandated race-
based classification.
-64-
-64-
statutory and constitutional propriety of the judicial remedy
ordered to provide redress to plaintiffs with standing who have
been injured by the violation.
Second, Adarand does not even discuss gender
discrimination, and its holding is limited to explicitly race-
based classifications. --- U.S. at ---, 115 S. Ct. at 2113. 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.
Third, even if Adarand did apply, it does not dictate
the level of scrutiny to be applied in this case, as Brown
concedes. For the last twenty years, the Supreme Court has
applied intermediate scrutiny to all cases raising equal
protection challenges to gender-based classifications, including
the Supreme Court's most recent gender discrimination case,
United States v. Virginia, --- U.S. ---, 116 S. Ct. 2264 (1996)
("Virginia"); see id. at 2288 (Rehnquist, C.J., concurring in the
judgment) (collecting cases).22
22. 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. While the Virginia
Court made liberal use of the phrase "exceedingly persuasive
justification," and sparse use of the formulation
"substantially related to an important governmental
objective," the Court nevertheless struck down the gender-
based admissions policy at issue in that case under
intermediate scrutiny, --- U.S. at ---, 116 S. Ct. at 2271,
2275; id. at 2288 (Rehnquist, C.J., concurring in the
-65-
-65-
Fourth, it is important to recognize that controlling
authority does not distinguish between invidious and benign
discrimination in the context of gender-based classifications, as
it has in the context of racial classifications. Neither this
court nor the Supreme Court has drawn this distinction in the
context of gender discrimination claims or held that a less
stringent standard applies in cases involving benign, rather than
invidious, gender discrimination. See Hogan, 458 U.S. at 724 &
n.9 (reviewing benign gender-conscious admissions policy under
intermediate scrutiny and recognizing that the analysis does not
change with the objective of the classification); accord Wygant,
476 U.S. at 273. Thus, the analytical result would be same, even
if this were an affirmative action case.
Under intermediate scrutiny, the burden of
demonstrating an exceedingly persuasive justification for a
government-imposed, gender-conscious classification is met by
showing that the classification serves important governmental
objectives, and that the means employed are substantially related
judgment), the standard applied to gender-based
classifications since 1976, when it was first announced in
Craig v. Boren, 429 U.S. at 197, 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. See Personnel Adm'r v. Feeney, 442 U.S. 256, 273
(1979); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981);
Hogan, 458 U.S. at 724; J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 136-37 (1994).
-66-
-66-
to the achievement of those objectives. E.g., Hogan, 458 U.S. at
724. Applying that test, it is clear that the district court's
remedial order passes constitutional muster.
We find that the first part of the test is satisfied.
The governmental objectives of "avoid[ing] the use of federal
resources to support discriminatory practices," and "provid[ing]
individual citizens effective protection against those
practices," Cannon, 441 U.S. at 704, are clearly important
objectives. We also find that judicial enforcement of federal
anti-discrimination statutes is at least an important
governmental objective.
Applying the second prong of the intermediate
scrutiny test, we find that the means employed by the district
court in fashioning relief for the statutory violation are
clearly substantially related to these important objectives.
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.
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. Even under the individual rights theory of
equal protection, reaffirmed in Adarand, --- U.S. at ---, 115 S.
-67-
-67-
Ct. at 2112 (the equal protection guarantee "protect[s] persons,
not groups"), the only way to determine whether the rights of an
individual athlete have been violated and what relief is
necessary to remedy the violation is to engage in an explicitly
gender-conscious comparison. Accordingly, even assuming that the
three-part test creates a gender classification that favors
women, allowing consideration of gender in determining the remedy
for a Title IX violation serves the important objective of
"ensur[ing] that in instances where overall athletic
opportunities decrease, the actual opportunities available to the
underrepresented gender do not." Kelley, 35 F.3d at 272. In
addition, a gender-conscious remedial scheme is constitutionally
permissible if it directly protects the interests of the
disproportionately burdened gender. See Hogan, 458 U.S. at 728("In limited circumstances, a gender-based classification
favoring one sex can be justified if it intentionally and
directly assists members of the sex that is disproportionately
burdened.").
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. In concluding that the district court's
interpretation and application of the three-part test creates a
quota, Brown errs, in part, because it fails to recognize that
(i) the substantial proportionality test of prong one is only the
starting point, and not the conclusion, of the analysis; and (ii)
-68-
-68-
prong three is not implicated unless a gender-based disparity
with respect to athletics participation opportunities has been
shown to exist. 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
Of course, a remedy that requires an institution to
cut, add, or elevate the status of athletes or entire teams may
impact the genders differently, but this will be so only if there
is a gender-based disparity with respect to athletics
opportunities to begin with, which is the only circumstance in
which prong three comes into play. Here, however, it has not
been shown that Brown's men students will be disadvantaged by the
full and effective accommodation of the athletics interests and
abilities of its women students.
VI.
VI.
Brown assigns error to the district court's exclusion
of certain evidence pertaining to the relative athletics
interests of men and women. Reviewing the district court's
23. Under the three-part test, the institution may also
excuse the disparity under prong two, by showing a "history
and continuing practice of program expansion which is
demonstrably responsive to the developing interest and
abilities of the [underrepresented gender]," 44 Fed. Reg. at
71,418, in which case the compliance inquiry ends without
reaching prong three. It has been determined that Brown
cannot avail itself of this defense. See Cohen III, 879 F.
Supp. at 211.
-69-
-69-
evidentiary rulings for abuse of discretion, see Sinai v. New
England Tel. and Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert.
denied, --- U.S. ---, 115 S. Ct. 597 (1994), we find none.
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. 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.
611(b); see Ferragama v. Chubb Life Ins. Co. of Am., 94 F.3d 26,
28 (1st Cir. 1996).
Brown also suggests that the district court's
exclusion of statistical and survey data offered in support of
its relative interests argument constitutes error. Although the
district court excluded as full exhibits two studies, the NCAA
Gender Equity Study and the results of an undergraduate poll on
student interest in athletics, it nevertheless permitted Brown's
experts to rely on the data contained in these two reports as a
basis for their expert opinions.24 Because Brown's experts
24. Brown also contends that the district court erred in
excluding the NCAA Annual Report. Appellant's Br. at 56-57.
Brown merely asserts, however, that the "study was admissible
under Rule 803," id. at 57, and offers no explanation as to
how it was prejudiced by the exclusion. Accordingly, we deem
the argument waived. Ryan v. Royal Ins. Co. of Am., 916 F.2d
731, 734 (1st Cir. 1990) ("It is settled in this circuit that
issues adverted to on appeal in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to
have been abandoned.") (citations omitted).
-70-
-70-
relied upon the excluded data in providing their opinions on the
issue of a gender-based differential in student interest in
athletics, the evidence was before the trier of fact and any
error was, therefore, harmless. See McDonough Power Equip., Inc.
v. Greenwood, 464 U.S. 548, 553 (1984) (instructing appellate
courts to "ignore errors that do not affect the essential
fairness of the trial").
VII.
VII.
It does not follow from our statutory and
constitutional analyses that we endorse the district court's
remedial order. Although we decline Brown's invitation to find
that the district court's remedy was an abuse of discretion, we
do find that the district court erred in substituting its own
specific relief in place of Brown's statutorily permissible
proposal to comply with Title IX by cutting men's teams until
substantial proportionality was achieved.
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). We also observed, however, that
"[w]e are a society that cherishes academic freedom and
recognizes that universities deserve great leeway in their
operations." 991 F.2d at 906 (citing Wynne v. Tufts Univ. Sch.
-71-
-71-
of Med., 976 F.2d 791, 795 (1st Cir. 1992), cert. denied, 507
U.S. 1030 (1993); Lamphere v. Brown Univ., 875 F.2d 916, 922 (1st
Cir. 1989)). Nevertheless, we have recognized that academic
freedom does not embrace the freedom to discriminate. Villanueva
v. Wellesley College, 930 F.2d 124, 129 (1st Cir. 1991)
(citations omitted).
The district court itself pointed out that Brown may
achieve compliance with Title IX in a number of ways:
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. I leave it entirely to Brown's
discretion to decide how it will balance
its program to provide equal
opportunities for its men and women
athletes. I recognize the financial
constraints Brown faces; however, its own
priorities will necessarily determine the
path to compliance it elects to take.
Cohen III, 879 F. Supp. at 214; see also Cohen II, 991 F.2d at
898 n.15 (noting that a school may achieve compliance with Title
IX by "reducing opportunities for the overrepresented gender").
With these precepts in mind, we first examine the
compliance plan Brown submitted to the district court in response
to its order. We then consider the district court's order
rejecting Brown's plan and the specific relief ordered by the
court in its place.
Brown's proposed compliance plan stated its goal as
follows:
-72-
-72-
The plan has one goal: to make the
gender ratio among University-funded
teams at Brown substantially
proportionate to the gender ratio of the
undergraduate student body. To do so,
the University must disregard the
expressed athletic interests of one
gender while providing advantages for
others. The plan focuses only on
University-funded sports, ignoring the
long history of successful donor-funded
student teams.
Brown's Plan at 1 (emphasis added).
In its introduction, Brown makes clear that it "would
prefer to maintain its current program" and that the plan
submitted
is inconsistent with Brown's philosophy
to the extent that it grants advantages
and enforces disadvantages upon student
athletes solely because of their gender
and curbs the historic role of coaches in
determining the number of athletes which
can be provided an opportunity to
participate. Nevertheless, the
University wishes to act in good faith
with the order of the Court,
notwithstanding issues of fact and law
which are currently in dispute.
Id. at 2.
Brown states that it "seeks to address the issue of
proportionality while minimizing additional undue stress on
already strained physical and fiscal resources." Id.
The general provisions of the plan may be summarized
as follows: (i) Maximum squad sizes for men's teams will be set
and enforced. (ii) Head coaches of all teams must field squads
that meet minimum size requirements. (iii) No additional
-73-
-73-
discretionary funds will be used for athletics. (iv) Four new
women's junior varsity teams -- basketball, lacrosse, soccer, and
tennis -- will be university-funded. (v) Brown will make
explicit a de facto junior varsity team for women's field hockey.
Id. at 3-4.
The plan sets forth nine steps for its
implementation, id. at 4-5, and concludes that "if the Court
determines that this plan is not sufficient to reach
proportionality, phase two will be the elimination of one or more
men's teams," id. at 5.
The district court found Brown's plan to be "fatally
flawed" for two reasons. First, despite the fact that 76 men and
30 women participated on donor-funded varsity teams, Brown's
proposed plan disregarded donor-funded varsity teams. District
Court Order at 5-6. Second, Brown's plan "artificially boosts
women's varsity numbers by adding junior varsity positions on
four women's teams." Id. at 6. 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. As noted
in Cohen, 879 F. Supp. at 200,
"intercollegiate" teams are those that
"regularly participate in varsity
competition." See 44 Fed. Reg. at 71,413
n.1. Junior varsity squads, by
definition, do not meet this criterion.
Counting new women's junior varsity
-74-
-74-
positions as equivalent to men's full
varsity positions flagrantly violates the
spirit and letter of Title IX; in no
sense is an institution providing equal
opportunity if it affords varsity
positions to men but junior varsity
positions to women.
District Court Order at 6 (footnote omitted).
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. at
8. In criticizing another facet of Brown's plan, the
district court pointed out that
[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. 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.
Id. at 8-9.
After rejecting Brown's proposed plan, but bearing in
mind Brown's stated objectives, the district court fashioned its
own remedy:
I have concluded that Brown's stated
objectives will be best served if I
design a remedy to meet the requirements
of prong three rather than prong one. 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. This
extreme action is entirely unnecessary.
-75-
-75-
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. 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. 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. Thus, Brown will
fully comply with Title IX by meeting the
standards of prong three, without
approaching satisfaction of the standards
of prong one.
It is clearly in the best interest of
both the male and the female athletes to
have an increase in women's opportunities
and a small decrease in men's
opportunities, if necessary, rather than,
as under Brown's plan, no increase in
women's opportunities and a large
decrease in men's opportunities.
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.
Id. at 11-12.
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. at
12. The court stayed this part of the order pending appeal and
further ordered that, in the interim, the preliminary injunction
prohibiting Brown from eliminating or demoting any existing
women's varsity team would remain in effect. Id.
-76-
-76-
We agree with the district court that Brown's
proposed plan fell short of a good faith effort to meet the
requirements of Title IX as explicated by this court in Cohen II
and as applied by the district court on remand. Indeed, the plan
is replete with argumentative statements more appropriate for an
appellate brief. It is obvious that Brown's plan was addressed
to this court, rather than to offering a workable solution to a
difficult problem.
It is clear, nevertheless, that Brown's proposal to
cut men's teams is a permissible means of effectuating compliance
with the statute. Thus, although we understand the district
court's reasons for substituting its own specific relief under
the circumstances at the time, and although the district court's
remedy is within the statutory margins and constitutional, we
think that the district court was wrong to reject out-of-hand
Brown's alternative plan to reduce the number of men's varsity
teams. 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. at 214. 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. Cohen II, 991 F.2d at 906;
Villanueva, 930 F.2d at 129.
-77-
-77-
Brown therefore should be afforded the opportunity to
submit another plan for compliance with Title IX. The context of
the case has changed in two significant respects since Brown
presented its original plan. First, the substantive issues have
been decided adversely to Brown. Brown is no longer an appellant
seeking a favorable result in the Court of Appeals. Second, the
district court is not under time constraints to consider a new
plan and fashion a remedy so as to expedite appeal. Accordingly,
we remand the case to the district court so that Brown can submit
a further plan for its consideration. In all other respects the
judgment of the district court is affirmed. The preliminary
injunction issued by the district court in Cohen I, 809 F. Supp.
at 1001, will remain in effect pending a final remedial order.
VIII.
VIII.
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. 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. In
addition, there is ample evidence that increased athletics
participation opportunities for women and young girls, available
as a result of Title IX enforcement, have had salutary effects in
other areas of societal concern. See DeFord, supra, at 66.
-78-
-78-
One need look no further than the impressive
performances of our country's women athletes in the 1996 Olympic
Summer Games to see that Title IX has had a dramatic and positive
impact on the capabilities of our women athletes, particularly in
team sports. These Olympians represent the first full generation
of women to grow up under the aegis of Title IX. The
unprecedented success of these athletes is due, in no small
measure, to Title IX's beneficent effects on women's sports, as
the athletes themselves have acknowledged time and again. 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. Kuttner, supra, at A15.
Affirmed in part, reversed in part, and remanded for
Affirmed in part reversed in part, and remanded for
further proceedings. No costs on appeal to either party.
further proceedings. No costs on appeal to either party.
- Dissenting opinion follows -
- Dissenting opinion follows -
-79-
-79-
TORRUELLA, Chief Judge (Dissenting). Because I am not
TORRUELLA, Chief Judge (Dissenting).
persuaded that the majority's view represents the state of the
law today, I respectfully dissent.
I. THE LAW OF THE CASE
I. THE LAW OF THE CASE
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. See
Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st
Cir. 1993); EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir. 1986). 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. See Linkletter v. Walker, 381 U.S. 618, 627
(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 (1993); Young v. Herring, 917 F.2d 858 (5th Cir.
1990); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981),
cert. denied, 459 U.S. 828 (1982). I believe that we face such a
situation in the instant case.
A. Adarand and Metro Broadcasting
A. Adarand and Metro Broadcasting
At the time of Cohen v. Brown University, 991 F.2d 888(1st Cir. 1993) (Cohen II), the standard intermediate scrutiny
test for discriminatory classifications based on sex required
that "a statutory classification must be substantially related to
-80-
-80-
an important government objective." Clark v. Jeter, 486 U.S.
456, 461 (1988); see also Mississippi Univ. for Women v. Hogan,
458 U.S. 718, 723-24, and n.9 (1982); Mills v. Habluetzel, 456
U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976);
Matthews v. Lucas, 427 U.S. 495, 505-06 (1976). As was also the
case under strict scrutiny review prior to Adarand Construction
Inc. v. Pena, U.S. , 115 S. Ct. 2097 (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 (1977) (allowing women to compute certain
social security benefits with a more favorable formula than could
be used by men); Lewis v. Cohen, 435 U.S. 948 (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).
In Cohen II, we applied precisely this type of benign-
classification analysis to what we viewed to be benign gender
discrimination by the federal government. 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
-81-
-81-
no constitutional infirmity." Cohen II, 991 F.2d at 901. 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. Indeed, no governmental interest is even
identified in Cohen II. Furthermore, both of the cases cited by
the Court in Cohen II are cases in which a suspect classification
was allowed because it was judged benign, see id. at 901 (citing
Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990) (race);
Califano v. Webster, 430 U.S. 313 (1977) (sex)).
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. See Metro Broadcasting, 497 U.S. at 564.
Specifically, the Supreme Court announced 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.
Id. at 565 (emphasis added). Although Metro Broadcasting
explicitly discussed race-conscious rather than gender-conscious
-82-
-82-
classifications, we applied its standard in Cohen II. See Cohen
II, 991 F.2d at 901.
Since Cohen II, however, Metro Broadcasting has been
overruled, at least in part. See Adarand Constr. Inc. v. Pena,
U.S. , , 115 S. Ct. 2097, 2111-12 (1995). In Adarand,
the Supreme Court held that "all racial classifications . . .
must be analyzed under strict scrutiny." Adarand, 115 S. Ct. at
2113. The Court in Adarand singled out Metro Broadcasting as a
"significant departure" from much of the Equal Protection
jurisprudence that had come before it, in part because it
suggested that "benign" government race-conscious classifications
should be treated less skeptically than others. See Adarand, 115
S. Ct. at 2112.
In Adarand, the Supreme Court reasoned that "'it may
not always be clear that a so-called preference is in fact
benign.'" Id. (quoting Regents of Univ. of Cal. v. Bakke, 438
U.S. 265 (1978) (opinion of Powell, J.)). Additionally, the
Supreme Court endorsed the view that
[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.
Id. at 2112; see also Richmond v. J.A. Croson Co., 488 U.S. 469,
493 (1989).
-83-
-83-
It is not necessary to equate race and gender to see
that the logic of Adarand -- counseling that we focus on the
categories and justifications proffered rather than the labels
attached -- applies in the context of gender. 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. See Adarand, 115 S. Ct. at 2112; see also
United States v. Virginia, 116 S.Ct 2264, 2274, 2277 (1996)
(viewing Virginia's benign justification for a gender
classification skeptically); Shuford v. Alabama State Bd. of
Educ., 897 F. Supp. 1535, 1557 (D. Ala. 1995) (stating that
courts "must look behind the recitation of a benign purpose to
ensure that sex-based classifications redress past
discrimination"). Rather than conduct an inquiry into whether
Title IX and its resulting interpretations are "benign" or
"remedial," and conscious of the fact that labels can be used to
hide illegitimate notions of inferiority or simple politics just
as easily in the context of gender as in the context of race, we
should now follow Adarand's lead and subject all gender-conscious
government action to the same inquiry.25
25. Our discussion in Cohen II also cited Califano v.
Webster, 430 U.S. 313 (1977), which has not been explicitly
overruled. That case concerned Congress' provision, under
the Social Security Act, for a lower retirement age for women
than for men, with the result that, as between similarly
-84-
-84-
B. United States v. Virginia
B. United States v. Virginia
A second Supreme Court case has also made it necessary
to review our decision in Cohen II. In United States v.
Virginia, 116 S.Ct. 2264 (1996), the Court faced an Equal
Protection challenge to Virginia's practice of maintaining the
Virginia Military Institute as an all male institution. 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 (1988),
the Supreme Court applied a more searching "skeptical scrutiny of
official action denying rights or opportunities based on sex,"
id., 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. In its
discussion, the Court stated that, in order to prevail in a
gender case, "the State must show at least that the challenged
situated male and female wage-earners, the female wage-earner
would be awarded higher monthly social security payments, id.
at 314-16. In that case, Congress specifically found that
more frequent and lower age limits were being applied to
women than to men in the labor market. Id. at 319. This led
the Supreme Court to characterize the provision at issue as
remedial rather than benign, noting that the provision had
been repealed in 1972, roughly contemporaneously with
"congressional [anti-discrimination] reforms [that] . . .
have lessened the economic justification for the more
favorable benefit computation" for women. Id. at 320. The
instant case should be distinguished from Califano for two
reasons. First, Califano did not necessarily rule on benign
classifications, as Metro Broadcasting and Adarand clearly
did. Second, Califano, unlike the instant case, contained an
"exceedingly persuasive justification" for its gender-
conscious state action.
-85-
-85-
classification serves important governmental objectives and that
the discriminatory means employed are substantially related to
the achievement of those objectives." Id. at 2275 (internal
quotations omitted) (emphasis added). Being "substantially
related to an important government objective," therefore, is
considered a necessary but not sufficient condition. The Court
also requires a focus on "whether the proffered justification is
"exceedingly persuasive." Id.
Virginia "drastically revise[d] our established
standards for reviewing sex-based classifications." Id. at 2291
(Scalia, J. dissenting). "Although the Court in two places . . .
asks whether the State has demonstrated that the classification
serves important governmental objectives and that the
discriminatory means employed are substantially related to the
achievement of those objectives . . . the Court never answers the
question presented in anything resembling that form." Id. at
2294 (citations omitted). "[T]he Court proceeds to interpret
'exceedingly persuasive justification' in a fashion that
contradicts the reasoning of Hogan and our other precedents."
Id.
What is important for our purposes is that the Supreme
Court appears to have elevated the test applicable to sex
discrimination cases to require an "exceedingly persuasive
justification." This is evident from the language of both the
majority opinion and the dissent in Virginia.
-86-
-86-
This is not just a matter of semantics. Metro
Broadcasting, and our application of its intermediate scrutiny
standard in Cohen II, omitted the additional "skeptical scrutiny"
requirement of an "exceedingly persuasive justification" for
gender-based government action. Compare Virginia, 116 S.Ct. at
2274 (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-
37, and n.6 (1994)), and Mississippi Univ. for Women v. Holden,
458 U.S. 718, 724 (1982), with Metro Broadcasting, 497 U.S. at
564-65.
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.
Under the new standards established in those cases, Cohen II is
flawed both because it applies a lenient version of intermediate
scrutiny that is impermissible following Adarand and because it
did not apply the "exceedingly persuasive justification" test of
Virginia. We must, as Brown urges, reexamine the Equal
Protection challenge to the three-prong test as interpreted by
the district court.
C. Preliminary Injunction
C. Preliminary Injunction
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. "When an appeal comes
to us in that posture, the appellate court's conclusions as to
the merits of the issues presented on preliminary injunction are
-87-
-87-
to be understood as statements of probable outcomes, rather than
as comprising the ultimate law of the case." A.M. Capen s Co. v.
American Trading and Prod. Co., 74 F.3d 317, 322 (1st Cir. 1996)
(internal quotations omitted); see also Narrangansett Indian
Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991).
The binding authority of Cohen II, therefore, is
lessened by the fact that it was an appeal from a preliminary
injunction. First, we now have a full record before us and a set
of well-defined legal questions presented by the appellant.
Trial on the merits has served to focus these questions and to
provide background that allows us to consider these questions in
the proper context and in detail. In its decision in Cohen II,
this court recognized and, indeed, emphasized the fact that its
holding was only preliminary. Cohen II, 991 F.2d at 902 ("a
party losing the battle on likelihood of success may nonetheless
win the war at a succeeding trial"). Rather than turning that
ruling into a permanent one, we should review the question in
light of the full set of facts now available.
Second, the standard of review has changed. The Cohen
II court stated that it was adopting a deferential standard of
review, and that "if . . . the district court made no clear error
of law or fact, we will overturn its calibration . . . only for
manifest abuse of discretion." Id. at 902. 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
-88-
-88-
injunction is refused; (3) the balance of interests as between
the parties . . . and (4) the public interest." Id. The case is
now before us on appeal from the merits and we must review it
accordingly. 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). Because the standard has changed,
it is conceivable that the result of the analysis will change,
making review appropriate.
II. BROWN'S EQUAL PROTECTION CHALLENGE
II. BROWN'S EQUAL PROTECTION CHALLENGE
Appellees have argued that the three-prong test does
not create a gender classification because the classification
applies to both women and men. 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. See United
States v. Virginia, U.S. , 116 S. Ct. 2264, 2274-76 (1996)
(applying Equal Protection review to "gender-based government
action" where Commonwealth of Virginia attempted to maintain two
purportedly equal single-sex institutions). Cf. Loving v.
Virginia, 388 U.S. 1, 8-9 (1967) (stating that even though the
statute at issue applied equally to members of different racial
classifications, it still implicated race-related Equal
-89-
-89-
Protection concerns, since the statute itself contained race-
conscious classifications). The fact of gender-conscious
classification, even with equal enforcement with respect to both
genders, requires the application of a higher level of scrutiny
than rational basis review. 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. 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. Ronald D. Rotunda & John E.
Nowak, 3 Treatise on Constitutional Law 18.2, at 7-8 (2d ed.
1992).
A. The District Court's Construction of the Three-
The District Court's Construction of the Three-
Prong Test
Prong Test
1. Prong One
1. Prong One
A central issue in this case is the manner in which
athletic "participation opportunities" are counted. During the
1990-91 academic year, Brown fielded 16 men s and 15 women s
varsity teams on which 566 men and 328 women participated. By
the 1993-94 year, there were 12 university-funded men s teams and
13 university funded women s teams. These teams included 479 men
and 312 women. Based on an analysis of membership in varsity
teams, the district court concluded that there existed a
-90-
-90-
disparity between female participation in intercollegiate
athletics and female student enrollment.
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. The regulation at 34 C.F.R. 106.41(b)
(1995) provides that an academic institution may operate 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." 34 C.F.R. 106.41(b). When a team is sponsored
only for one sex, however, and where "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. (emphasis
added). The regulation, therefore, allows schools to operate
single-sex teams in contact sports. In counting participation
opportunities, therefore, it does not make sense to include in
the calculus athletes participating in contact sports that
include only men s teams. For example, if a university chooses
to sponsor a football team, it is permitted to sponsor only a
men s team. Not all sports are the same and the university
should be given the flexibility to determine which activities are
most beneficial to its student body. By including in its
accounting a contact sport that requires very large numbers of
participants, e.g., football, the district court skews the number
-91-
-91-
of athletic participants -- making it impossible for the
university to provide both men's and women's teams in other
sports.
If the athletes competing in sports for which the
university is permitted to field single-sex teams are excluded
from the calculation of participation rates, the proportion of
women participants would increase dramatically and prong one
might be satisfied. If so, the inquiry ends and Brown should be
judged to be in compliance.
2. Prong Two
2. Prong Two
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 18. This is a curious result because the
entire three-prong test is based on relative participation rates.
Prong one, for example, requires that participation opportunities
be provided proportionately to enrollment, but does not mandate
any absolute number of such opportunities. 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
26. This requirement presents a dilemma for a school in
which women are less interested in athletics, as Brown
contends is the case. Under such conditions, a school may be
-92-
-92-
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. Rather than
respecting the school s right to determine the role athletics
will play in the future -- including reducing the opportunities
available to the formerly overrepresented gender to ensure
proportionate opportunities -- the district court and the
majority demand that the absolute number of opportunities
provided to the underrepresented gender be increased. I see no
possible justification for this interpretation -- the regulation
is intended to protect against discrimination, not to promote
athletics on college campuses. A school is not required to
sponsor an athletic program of any particular size. It is not
for the courts, or the legislature, for that matter, to mandate
programs of a given size. The most that can be demanded is that
athletics be provided in a non-discriminatory manner.
Furthermore, the claim that a reduction in the
opportunities given to the overrepresented gender is an
unacceptable method of coming into compliance with the three
prong test is contrary to both Cohen II and comments of the
majority opinion. The majority quotes approvingly from Cohen v.
Brown Univ., 879 F. Supp. 185 (D.R.I. 1995) (Cohen III), to
unable to succeed under the second prong because there may
not be enough interested female students to achieve a
continuing increase in the number of female participants.
-93-
-93-
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.
Majority Opinion at 70 (quoting Cohen III). This conclusion is
consistent with Cohen II, which states that a school may achieve
compliance by reducing opportunities for the overrepresented
gender. See Cohen II, 991 F.2d at 898 n.15. I fail to see how
these statements can be reconciled with the claim that Brown
cannot satisfy prong two by reducing the number of participation
opportunities for men.
3. Prong Three
3. Prong Three
Prong three of the three-prong test states that, where
an institution does not comply with prongs one or two, compliance
will be assessed on the basis of
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.
44 Fed. Reg. 71,413, 71,418 (December 11, 1979).
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
-94-
-94-
fact being funded. The district court asserts that this is not a
quota. 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.
The district court's narrow, literal interpretation
should be rejected because prong three cannot be read in
isolation. First, as Brown points out, the Regulation that
includes prong three provides that, in assessing compliance under
the regulation, "the governing principle in this area is that the
athletic interests and abilities of male and female students be
equally effectively accommodated." Policy Interpretation, 44
Fed. Reg. 71,413, 71,414. 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.
It is also worthwhile to note that to "fully"
accommodate the interests and abilities of the underrepresented
sex is an extraordinarily high -- perhaps impossibly so --
requirement. How could an academic institution with a large and
diverse student body ever "fully" accommodate the athletic
interests of its students? Under even the largest athletic
program, it would be surprising to find that there is not a
-95-
-95-
single student who would prefer to participate in athletics but
does not do so because the school does not offer a program in the
particular sport that interests the student. To read fully in an
absolute sense would make the third prong virtually impossible to
satisfy and, therefore, an irrelevant addition to the test.
This difficulty was recognized in Cohen II, which
stated that "the mere fact that there are some female students
interested in a sport does not ipso facto require the school to
provide a varsity team in order to comply with the third
benchmark." Cohen II 991 F.2d at 898. The balance that Cohen II
advocates would require the institution to ensure "participatory
opportunities . . . when, and to the extent that, there is
sufficient interest and ability among the members of the excluded
sex to sustain a viable team." Id. (internal citations omitted).
This standard may be practical for certain sports that require
large teams, but what of individual sports? A "viable" tennis
team may require only a single player. The same could be said of
any individual sport, including golf, track and field, cycling,
fencing, archery, and so on. 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.
In light of the above, Brown argues that prong three is
in fact ambiguous with respect to whether "fully" means (1) an
institution must meet 100% of the underrepresented gender's unmet
-96-
-96-
reasonable interest and ability, or (2) an institution must meet
the underrepresented gender's unmet reasonable interest and
ability as fully as it meets those of the overrepresented gender.
I agree with Brown that, in the context of OCR's Policy
Interpretation, prong three is susceptible to at least these two
plausible interpretations.
Additionally, section 1681(a), a provision enacted by
Congress as part of Title IX itself, casts doubt on the district
court's reading of prong three. 20 U.S.C. 1681(a) (1988). As
Brown points out, Title IX, of which the Policy Interpretation is
an administrative interpretation, contains language that
prohibits the ordering of preferential treatment on the basis of
gender due to a failure of a program to substantially mirror the
gender ratio of an institution. Specifically, with respect to
Title IX's guarantee that no person shall be excluded on the
basis of sex from "participation in, denied the benefits of or
subjected to discrimination under any education program or
activity receiving Federal financial assistance," 20 U.S.C.
1681(a),
[n]othing contained [therein] 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 the 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.
-97-
-97-
Id. 1681(b). 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.
Since the applicable regulation, 34 C.F.R. 106.41,
and policy interpretation, 44 Fed. Reg. 71,418, are not
manifestly contrary to the objectives of Title IX, and Congress
has specifically delegated to an agency the responsibility to
articulate standards governing a particular area, we must accord
the ensuing regulation considerable deference. Chevron, U.S.A.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984). 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. Therefore, like other cases of statutory
interpretation, we should review the district court's reading de
novo.
B. The District Court's Interpretation and the
B. The District Court's Interpretation and the
Resulting Equal Protection Problem
Resulting Equal Protection Problem
The district court's interpretation of prongs one and
three creates an Equal Protection problem, which I analyze in two
steps. First, the district court's interpretation creates a
quota scheme. Second, even assuming such a quota scheme is
otherwise constitutional, appellees have not pointed to an
"exceedingly persuasive justification," see Virginia, 116 S.Ct.
at 2274, for this particular quota scheme.
-98-
-98-
1. The Quota
1. The Quota
I believe that the three prong test, as the district
court interprets it, is a quota. I am in square disagreement
with the majority, who believe that "[n]o aspect of the Title IX
regime at issue in this case . . . mandates gender-based
preferences or quotas." Majority Opinion at 29. Put another
way, I agree that "Title IX is not an affirmative action
statute," id., but I believe that is exactly what the district
court has made of it. As interpreted by the district court, the
test constitutes an affirmative action, quota-based scheme.
I am less interested in the actual term "quota" than
the legally cognizable characteristics that render a quota scheme
impermissible. And those characteristics are present here in
spades. I am not persuaded by the majority's argument that the
three-part test does not constitute a quota because it does not
permit an agency or court to find a violation solely on the basis
of prong one of the test; instead, an institution must also fail
prongs two and three. As Brown rightly argues, the district
court's application of the three-prong test requires Brown to
allocate its athletic resources to meet the as-yet-unmet interest
of a member of the underrepresented sex, women in this case,
while simultaneously neglecting any unmet interest among
individuals of the overrepresented sex. To the extent that the
rate of interest in athletics diverges between men and women at
any institution, the district court's interpretation would
-99-
-99-
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. "The injury in
cases of this kind is that a 'discriminatory classification
prevent[s] . . . competition on an equal footing.'" Adarand, 115
S. Ct. at 2104 (quoting Northeast Fla. Chapter, Assoc'd Gen'l
Contractors of America v. Jacksonville, 508 U.S. 656, 666
(1993)). As a result, individual male and female students would
be precluded from competing against each other for scarce
resources; they would instead compete only against members of
their own gender. Cf. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th
Cir.) (concluding that not only would government action
precluding competition between individuals of different races for
law school admissions be unconstitutional, but in fact even
partial consideration of race among other factors would be
unconstitutional), cert. denied, 116 S.Ct. 2581 (1996).27
27. In response, appellees cite Kelley v. Board of Trustees,
35 F.3d 265 271 (1994), for the proposition that the three-
prong test does not constitute a quota, because it does not
"require any educational institution to grant preferential or
disparate treatment" to the gender underrepresented in that
institution's athletic program. Id. However, in Kelley, the
Seventh Circuit, unlike the district court, did not use the
three-prong test as a definitive test for liability. Rather,
the Seventh Circuit endorsed the test as one for compliance,
in dismissing the plaintiff's claims. The Seventh Circuit
did not consider the question of whether, had the defendant
-100-
-100-
The majority claims that "neither the Policy
Interpretation nor the district court's interpretation of it,
mandates statistical balancing." Majority Opinion at 41. The
logic of this position escapes me. A school can satisfy the test
in three ways. The first prong is met if the school provides
participation opportunities for male and female students in
numbers substantially proportionate to their enrollments. This
prong surely requires statistical balancing. The second prong is
satisfied if an institution that cannot meet prong one can show a
"continuing practice of program expansion which is demonstrably
responsive to the developing interest and abilities of the
members of the underrepresented sex." 44 Fed. Reg. at 71,418.
It can hardly be denied that this prong requires statistical
balancing as it is essentially a test that requires the school to
show that it is moving in the direction of satisfying the first
prong. Establishing that a school is moving inexorably closer to
satisfying a requirement that demands statistical balancing can
only be done by demonstrating an improvement in the statistical
balance. In other words, the second prong also requires
balancing. Finally, the third prong, interpreted as the majority
advocates, dispenses with statistical balancing only because it
University of Illinois not been in compliance, lack of
compliance with the three-prong test alone would trigger
automatic liability, nor did the Seventh Circuit spell out
what steps would have been required of defendant. 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.
-101-
-101-
choose to accord zero weight to one side of the balance. Even a
single person with a reasonable unmet interest defeats
compliance. This standard, in fact, goes farther than the
straightforward quota test of prong one. According to the
district court, the unmet interests of the underrepresented sex
must be completely accommodated before any of the interest of the
overrepresented gender can be accommodated.28
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. 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. Regardless of how many steps are involved, the fact
remains that the test requires proportionate participation
opportunities for both sexes (prong one) unless one sex is simply
not interested in participating (prong three). It seems to me
that a quota with an exception for situations in which there are
28. 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. This policy is comparable to prong one of the
three prong test and is, without a doubt, a quota. It is no
less a quota if an exception exists for schools whose gender
ratio differs from that of the local population but which
admit every applicant of the underrepresented gender. It
remains a quota because the school is forced to admit every
female applicant until it reaches the requisite proportion.
Similarly, the district court's interpretation requires the
school to accommodate the interests of every female student
until proportionality is reached.
-102-
-102-
insufficient interested students to allow the school to meet it
remains a quota. All of the negative effects of a quota
remain,29 and the school can escape the quota under prong three
only by offering preferential treatment to the group that has
demonstrated less interest in athletics.
2. "Extremely Persuasive Justification" Test
2. "Extremely Persuasive Justification" Test
In view of the quota scheme adopted by the district
court, and Congress' specific disavowal of any intent to require
quotas as part of Title IX, appellees have not met their burden
of showing an "exceedingly persuasive justification" for this
gender-conscious exercise of government authority. As recently
set forth in Virginia, "[p]arties who seek to defend gender-based
government action must demonstrate an 'exceedingly persuasive
justification' for that action." Virginia, 116 S.Ct. at 2274.
While the Supreme Court in Virginia acknowledged that "[p]hysical
differences between men and women . . . are enduring," id. at
2276, it went on to state that such "'[i]nherent differences'
between men and women, we have come to appreciate, remain cause
for celebration, but not for . . . artificial constraints on an
individual's opportunity." Id.
29. Nor does the second prong of the test change the
analysis. That prong merely recognizes that a school may not
be able to meet the quotas of the first or third prong
immediately, and therefore deems it sufficient to show
program expansion that is responsive to the interests of the
underrepresented sex.
-103-
-103-
Neither appellees nor the district court have
demonstrated an "exceedingly persuasive justification" for the
government action that the district court has directed in this
case. 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. While they point to Congress' decision to delegate
authority to the relevant agencies, this does not amount to a
genuine -- that is, not hypothesized or invented in view of
litigation, id. at 2275 -- exceedingly persuasive justification
in light of section 1681(b)'s "no quota" provision. 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. There is little more than that,
because Congress adopted Title IX as a floor amendment without
committee hearings or reports. See Cohen II, 991 F.2d at 893.
I believe that the district court's interpretation of
the Policy Interpretation's three-prong test poses serious
constitutional difficulties. "[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. & Constr.
Trades Council, 485 U.S. 568 (1988); see NLRB v. Catholic Bishop
of Chicago, 440 U.S. 490, 507 (1979). To the extent that
-104-
-104-
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. As a result,
I opt for Brown's construction of prong three, which, as we have
discussed, infra, is also a reasonable reading.
Accordingly, I would reverse and remand for further
proceedings.
III. Evidentiary Issues
III. Evidentiary Issues
In disputes over the representation of women in
athletic programs, it is inevitable that statistical evidence
will be relevant. There is simply no other way to assess
participation rates, interest levels, and abilities. The
majority opinion, however, offers inconsistent guidance with
respect to the role of statistics in Title IX claims. Early in
the opinion, the majority approvingly cites to the statistical
evaluations conducted in Cohen I, Cohen II, and Cohen III.
Majority Opinion at 8-10. The figures in question demonstrate
that women s participation in athletics is less than proportional
to their enrollment. Later in the opinion, however, when the
level of interest among women at Brown is at issue, the court
adopts a much more critical attitude towards statistical
evidence: "[T]here exists the danger that, rather than providing
a true measure of women s interest in sports, statistical
evidence purporting to reflect women s interest instead provides
only a measure of the very discrimination that is and has been
-105-
-105-
the basis for women s lack of opportunity." Majority Opinion at
53. In other words, evidence of differential levels of interest
is not to be credited because it may simply reflect the result of
past discrimination.
The refusal to accept surveys of interest levels as
evidence of interest raises the question of what indicators might
be used. The majority offers no guidance to a school seeking to
assess the levels of interest of its students. Although the
three-prong test, even as interpreted by the district court,
appears to allow the school the opportunity to show a lack of
interest, the majority rejects the best -- and perhaps the only -
- mechanism for making such a showing.
Brown claims that the district court erred in excluding
evidence pertaining to the relative athletic interests of men and
women at the university. Brown sought to introduce the NCAA
Gender Equity Study and the results of an undergraduate poll on
student interest in athletics, but was not permitted to do so.
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. Indeed, despite
Brown's attempt to present evidence in support of its claim, the
majority characterizes Brown's argument as an "unproven
assertion." Majority Opinion at 51.30
30. Among the evidence submitted by Brown are: (i)
admissions data showing greater athletic interest among male
applicants than female applicants; (ii) college board data
-106-
-106-
Furthermore, the majority recognizes that institutions
are entitled to use any nondiscriminatory method of their
choosing to determine athletic interests. Majority Opinion at 53
n.15. 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. Any studies or surveys
they might conduct in order to assess their own compliance would,
in the event of litigation, be deemed irrelevant. Regardless of
the efforts made by the academic institution, the specter of a
lawsuit would be ever-present.
In addition, the majority has put the power to control
athletics and the provision of athletic resources in the hands of
the underrepresented gender. 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. Unless the two genders
showing greater athletic interest and prior participation
rates by prospective male applicants than female applicants;
(iii) data from the Cooperative Institutional Research
Program at UCLA indicating greater athletic interest among
men than women; (iv) an independent telephone survey of 500
randomly selected Brown undergraduates that reveals that
Brown offers women participation opportunities in excess of
their representation in the pool of interested, qualified
students; (v) intramural and club participation rates that
demonstrate higher participation rates among men than women;
(vi) walk-on and try-out numbers that reflect a greater
interest among men than women; (vii) high school
participation rates that show a much lower rate of
participation among females than among males; (viii) the NCAA
Gender Equity Committee data showing that women across the
country participate in athletics at a lower rate than men.
-107-
-107-
participate equally in athletics, members of the underrepresented
sex would have the ability to demand a varsity level team at any
time if they can show sufficient interest. 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.
IV. FIRST AMENDMENT ISSUE
IV. FIRST AMENDMENT ISSUE
Finally, it is important to remember that Brown
University is a private institution with a constitutionally
protected First Amendment right to choose its curriculum.
Athletics are part of that curriculum. Although the protections
of the First Amendment cannot be used to justify discrimination,
this court should not forget that it has a duty to protect a
private institution s right to mould its own educational
environment.
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
69 (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 75. Despite
these statements, however, the majority in its opinion today, and
the district court before it, have failed to give Brown
-108-
-108-
University freedom to craft its own athletic program and to
choose the priorities of that program. Instead, they have
established a legal rule that straightjackets college athletics
programs by curtailing their freedom to choose the sports they
offer.
-109-
-109-