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. 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, 518 U.S. at ----, ----, 116 S.Ct. Second, even assuming such a quota scheme is otherwise constitutional, appellees have not pointed to an exceedingly persuasive justification, see Virginia, 518 U.S. at ----, 116 S.Ct. 106.41, and policy interpretation, 44 Fed.Reg. We do not question Cohen II's application of 1681(b). We have narrowly confined the intervening controlling authority exception to Supreme Court opinions, en banc opinions of this court, or statutory overrulings. 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. Id. Title IX is an anti-discrimination statute, modeled after Title VI of the Civil Rights Act of 1964, 42 U.S.C. . There is little more than that, because Congress adopted Title IX as a floor amendment without committee hearings or reports. See DeFord, supra, at 66. EPA questioned the petitioners' standing to invoke the court's jurisdiction under Article III. Id. 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. 2755, 2762-63, 49 L.Ed.2d 651 (1976). the ratio of women athlete in Brown University in 1991. We reject both premises.17 Brown's implicit 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. at 1846-47. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. 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. at 895. at 2271, 2275; id. According to the statute's senate sponsor, Title IX was intended to. Cohen v. Smith: male nurse touched no touch pregnant lady. 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. 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. Cf. 2003) on CaseMine. We must, as Brown urges, reexamine the Equal Protection challenge to the three-prong test as interpreted by the district court. (b)Separate teams. Brown University, as an Ivy League institution, does not grant athletic scholarships to its students. Trades Council, 485 U.S. 568, 108 S.Ct. Further, inappropriately relying on Frontiero, 411 U.S. 677, 93 S.Ct. Second, Adarand does not even discuss gender discrimination, and its holding is limited to explicitly race-based classifications. A school is not required to sponsor an athletic program of any particular size. Appellees argue that this claim is waived because Brown did not raise it in the district court. at 12. The regulation at issue in this case, 34 C.F.R. at 71,417). Therefore, like other cases of statutory interpretation, we should review the district court's reading de novo. 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 1956. 689, 126 L.Ed.2d 656 (1994). Cf. 17. 3. It does not follow from our statutory and constitutional analyses that we endorse the district court's remedial order. ; 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. Cohen II, 991 F.2d at 906; Villanueva, 930 F.2d at 129. The first prong is met if the school provides participation opportunities for male and female students in numbers substantially proportionate to their enrollments. 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. The plan focuses only on University-funded sports, ignoring the long history of successful donor-funded student teams. B. The general provisions of the plan may be summarized as follows: (i) Maximum squad sizes for men's teams will be set and enforced. 20 U.S.C. at 314-16, 97 S.Ct. See Miller, 515 U.S. at ----, 115 S.Ct. 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. 1681-1688, provides that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. Id. at 205. 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. We note that Brown presses its relative interests argument under both prong one and prong three. 106.41 (1995), provides: (a)General. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . 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 Protection Clause. Each prong of the Policy Interpretation's three-part test determines compliance in this manner. 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. 1996) . 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. The district court concluded that intercollegiate athletics opportunities means real opportunities, not illusory ones, and therefore should be measured by counting actual participants. Id. The original Cohen case was settled in 1998 by Joint Agreement. 1044, 134 L.Ed.2d 191 (1996). Id. at 71,419 (Participation in intercollegiate sports has historically been emphasized for men but not women. On October 27, 2021, the U.S. Court of Appeals for the First Circuit upheld the approval of the Amendment to the Joint Agreement. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir. 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. 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. A second Supreme Court case has also made it necessary to review our decision in Cohen II. Toggle navigation . 1419, --------- and n. 6, 128 L.Ed.2d 89 (1994)), and Mississippi Univ. In Frontiero, a plurality of the Court concluded that gender-based classifications, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. 411 U.S. at 688, 93 S.Ct. Bob Jones University v. United States; City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983). Cohen v. Brown University. 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. Although Cohen II, in its brief discussion of the equal protection issue, does not specify the precise standard it used, the court stated that even if we were to assume that the regulation creates a gender classification slanted somewhat in favor of women, we would find no constitutional infirmity. Cohen II, 991 F.2d at 901. See Miller v. Johnson, 515 U.S. 900, ----, 115 S.Ct. 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. Cohen v. Brown University. at 3336; J.E.B. at 189. of Higher Educ., 524 F.Supp. at ----, 115 S.Ct. 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. Nevertheless, we have recognized that academic freedom does not embrace the freedom to discriminate. 1817, 1821-22, 18 L.Ed.2d 1010 (1967) (stating that even though the statute at issue applied equally to members of different racial classifications, it still implicated race-related Equal Protection concerns, since the statute itself contained race-conscious classifications). at ----, 116 S.Ct. Despite these statements, however, the majority in its opinion today, and the district court before it, have failed to give Brown University freedom to craft its own athletic program and to choose the priorities of that program. Co., 74 F.3d 317, 322 (1st Cir.1996) (internal quotations omitted); see also Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. 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. 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, 99 S.Ct. For the purposes of this appeal, we must review findings of fact under a clearly erroneous standard, Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1069 (1st Cir.1995) and findings of law de novo, Portsmouth v. Schlesinger, 57 F.3d 12, 14 (1st Cir.1995). Accordingly, we deem the argument waived. 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. Even a single person with a reasonable unmet interest defeats compliance. Ryan v. Royal Ins. 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. (quoting Regents of Univ. 1681(b). Any studies or surveys they might conduct in order to assess their own compliance would, in the event of litigation, be deemed irrelevant. at 902 (citing 44 Fed.Reg. 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. 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. Adopted Title IX was intended to, Adarand does not embrace the freedom to discriminate not Cohen. After Title VI of the Policy interpretation 's three-part test determines compliance in this case 34... Discrimination, and its holding is limited to explicitly race-based classifications Lucas 427... Recognized that academic freedom does not even discuss gender discrimination, and Mississippi Univ,... 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