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. Based on the facts of this case, the Court holds that . United States Court of Appeals for the First Circuit. 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 the basis for women's lack of opportunity. Majority Opinion at 179. 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. Compare Virginia, 518U.S. at 211. at 209. First, we now have a full record before us and a set of well-defined legal questions presented by the appellant. 2264, 2274-76, 135 L.Ed.2d 735 (1996) (applying Equal Protection review to gender-based government action where Commonwealth of Virginia attempted to maintain two purportedly equal single-sex institutions). 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). 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 725-28, because [s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy, Wygant, 476 U.S. at 276, 106 S.Ct. at 5. at 71,418. 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. 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. 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. Reviewing the district court's evidentiary rulings for abuse of discretion, see Sinai v. New England Tel. 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 190. Id. I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. at 189-90. 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. 2475, 2491, 132 L.Ed.2d 762 (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, 113 S.Ct. 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's football team competes in Division I-AA, the second highest level of NCAA competition. A school can satisfy the test in three ways. 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. 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. 1313, 1322, 59 L.Ed.2d 533 (1979). for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. at 2275 (internal quotations omitted) (emphasis added). 65, 74 L.Ed.2d 66 (1982). Massachusetts Court Clarifies Recently Enacted Bond Provision in Zoning and Comprehensive Permit Appeals. 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 981. 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. 1681, et seq. The only women's varsity team created after this period was winter track, in 1982. THE PLAINTIFF CLASS. 515, ----, ----, 116 S.Ct. See Adarand, 515 U.S. at ----, 115 S.Ct. Accordingly, we deem the argument waived. 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. Cohen III, 879 F.Supp. 1996) Although written to prevent discrimination based on gender in educational institutions, Title IX perhaps more than any other law has changed the face of the sport and recreation industries. to participate in their sports as "intercollegiate clubs," but would not receive financial assistance from the university. Brown also suggests that the district court's exclusion of statistical and survey data offered in support of its relative interests argument constitutes error. at 27. at n. 41. Cohen II, 991 F.2d at 901. 15. The school argues women are less interested in sports than men. at 2724 (holding that Title VII does not prohibit private employers from voluntarily implementing race-conscious measures to eliminate manifest racial imbalances in traditionally segregated job categories); McDaniel v. Barresi, 402 U.S. 39, 41, 91 S.Ct. at 190 n. 14. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. It has been determined that Brown cannot avail itself of this defense. Brown University's main campus Credit: Kylie Cooper A group of students on women's athletic teams filed a motion against Brown in 2020 after the university demoted multiple women's varsity teams to club teams, according to a press release from the American Civil Liberties Union of Rhode Island. The number of 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. 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. Id. 1044, 134 L.Ed.2d 191 (1996). 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. Get free access to the complete judgment in COHEN v. BROWN UNIVERSITY, (D.R.I. We assume, without deciding, that Brown has not waived its equal protection claim and has standing to raise it. 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. 2733, 57 L.Ed.2d 750 (1978) (striking down a state medical school's admissions policy that set aside 16 of its places for racial minorities). at 1195-96. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 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. 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. denied, 459 U.S. 828, 103 S.Ct. See Hogan, 458 U.S. at 728, 102 S.Ct. We disagree. 1681(a) (1988). at 12. 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. See Miller v. Johnson, 515 U.S. 900, ----, 115 S.Ct. 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. In Marengi v. 6 Forest Road LLC, 491 Mass. With these precepts in mind, we first examine the compliance plan Brown submitted to the district court in response to its order. 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, 111 S.Ct. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. 2778, 2782-83, 81 L.Ed.2d 694 (1984). The district court subsequently issued a modified order, requiring Brown to submit a compliance plan within 60 days. 398. 1549, 1554-55, 71 L.Ed.2d 770 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. The regulation at 34 C.F.R. at 981. of the Commonwealth Sys. 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, 97 S.Ct. 1B Moore at 0.404[1]. ECF No. 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. 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. 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. v. Alabama ex rel. 1681(a). 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. 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. 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. at 2271, 2275; id. 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. Access to the complete judgment in COHEN v. 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