(iv) Four new women's junior varsity teams-basketball, lacrosse, soccer, and tennis-will be university-funded. Prong one, for example, requires that participation opportunities be provided proportionately to enrollment, but does not mandate any absolute number of such opportunities. 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. 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. 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. 1996) 101 F.3d 155, 179-180); WHEREAS, Through the enactment of Assembly Bill No . 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 ----, 116 S.Ct. Please try again. 106.1-106.71. 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. 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 469, 109 S.Ct. 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. of Educ., 402 U.S. 1, 25, 91 S.Ct. No. Cohen v. Brown is a class-action lawsuit named for Amy Cohen, a former gymnast and plaintiff in the suit. 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. District Court Order at 5-6. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. 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. We emphasize that, on the facts of this case, Brown's lack-of-interest arguments are of no consequence. No tags have been applied so far. Additionally, the Supreme Court endorsed the view that. Id. at 3336 & 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, 106 S.Ct. According to the statute's senate sponsor, Title IX was intended to. 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. Second, the district court is not under time constraints to consider a new plan and fashion a remedy so as to expedite appeal. Id. 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. Id. 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. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). T.B., 511 U.S. 127, 136-37, and n. 6, 114 S.Ct. 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 1848. Nor does the second prong of the test change the analysis. The general provisions of the plan may be summarized as follows: (i) Maximum squad sizes for men's teams will be set and enforced. 379, 384 (1995) (citing Grottveit, supra). at 463 (statistics exhibit a variety of shortcomings that seriously impugn their value to equal protection analysis); id. 978, 1001 (D.R.I.1992) (Cohen I). 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. 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 170. 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. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. 1993) Rule: A district court, faced with a motion for preliminary injunction, must assess the request in four particular ways, evaluating: (1) the movant's probability of victory on the merits; (2) the potential for irreparable harm if the injunction is refused; (3) the balance of interests as between the parties, i.e . 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. See Hogan, 458 U.S. at 728, 102 S.Ct. 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. Brown claims that the district court erred in excluding evidence pertaining to the relative athletic interests of men and women at the university. A group of states and local governments alleged that EPA has abdicated it responsibility to regulate the emission of greenhouse gases under the Clean Air Act. at 211. 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. 27. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. Surely this is a far cry from a one-step imposition of a gender-based quota. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. We hold that the district court did not err in the degree of deference it accorded the regulation and the relevant agency pronouncements. This is not just a matter of semantics. I recognize the financial constraints Brown faces; however, its own priorities will necessarily determine the path to compliance it elects to take. View Cohen v. Brown University. 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. The only women's varsity team created after this period was winter track, in 1982. at n. 47. 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. 1681-1688 (1988) ("Title IX"). denied, 510 U.S. 1004, 114 S.Ct. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.44 Fed.Reg. Our guests were Ted Shaw of the University of North Carolina Law School and Michael Klarman of Harvard Law School. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. [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. Brown also suggests that the district court's exclusion of statistical and survey data offered in support of its relative interests argument constitutes error. v. Alabama ex rel. of Higher Educ., 524 F.Supp. at 1848, on the basis of facts insufficient to support a prima facie case of a constitutional or statutory violation, Croson, 488 U.S. at 500, 109 S.Ct. 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, 104 S.Ct. 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. 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. at 2274 (citing J.E.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. 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. And those characteristics are present here in spades. Brown's talismanic incantation of affirmative action has no legal application to this case and is not helpful to Brown's cause. 1681(b). The Policy Interpretation was designed specifically for intercollegiate athletics.12 44 Fed.Reg. THE PLAINTIFF CLASS. 4. 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. Brown v. Board of Education, 347 U.S. 483 (1954) - Amicus curiae for Oliver Brown; . 1313, 1322, 59 L.Ed.2d 533 (1979). at 209. at 2288 (Rehnquist, C.J., concurring in the judgment) (collecting cases).22. As noted in Cohen, 879 F.Supp. 106.41 (1995), provides: (a)General. We disagree. 451, 462-463, 50 L.Ed.2d 397 (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. Injury is at 2275 (internal quotations omitted) (emphasis added). at 1176 (citation omitted). 978 (D.R.I. docx.docx from POLI 212 at Walden University. 20 U.S.C. A central issue in this case is the manner in which athletic participation opportunities are counted. of the Commonwealth Sys. at 202, 97 S.Ct. 515 U.S. at ----, 115 S.Ct. 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 of discrimination differently from Title VII. Cohen III, 879 F.Supp. at 71,413. 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. at 189. 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. 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. 185 (D.R.I.1995) (Cohen III), to demonstrate the many ways in which a university might achieve compliance: It may eliminate its athletic program altogether, it may elevate or create the requisite number of women's positions, it may demote or eliminate the requisite number of men's positions, or it may implement a combination of these remedies. Trades Council, 485 U.S. 568, 108 S.Ct. 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. 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. Id. 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. Appellee's Br. 12. 2097, 132 L.Ed.2d 158 (1995), however, courts applying intermediate scrutiny sometimes allowed benign gender classifications on the grounds that they were a reasonable means of compensating women as a class for past discrimination. Ronald D. Rotunda & John E. Novack, 3 Treatise on Constitutional Law 18.23, at 277; see Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1731, 1736-37, 14 L.Ed.2d 601 (1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 945 F.2d 10, 12 (1st Cir.1991), rev'd on other grounds, 506 U.S. 139, 113 S.Ct. United States Court of Appeals for the First Circuit. According to the district court, Brown's athletics program violates prong three because members of the proportionately underrepresented sex have demonstrated interest sufficient for a university-funded varsity team that is not in fact being funded. Id. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Time constraints to consider a new plan and fashion a remedy so as expedite! Facts of this case, Brown 's undergraduate enrollment comprised 52.4 % ( 2,683 ) women ). At 2275 ( internal quotations omitted ) ( citing Wynne v. Tufts.!, 1001 ( D.R.I.1992 ) ( upholding a federal program requiring race-based ). 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