Amy Cohen v. Brown University

This is a class action lawsuit charging Brown University, its president, and its athletics director (collectively "Brown") with discrimination against women in the operation of its intercollegiate athletics program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 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 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 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 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.

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.

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 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 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 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 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 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.

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. § 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 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, 102 S.Ct. 1912, 1919 n. 13, 72 L.Ed.2d 299 (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, 99 S.Ct. 1946, 1961, 60 L.Ed.2d 560 (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 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 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.

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 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 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." 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, 99 S.Ct. at 1957 ("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, 99 S.Ct. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 1038, 117 L.Ed.2d 208 (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, 112 S.Ct. at 1031-33, 1035-37. In addition, a majority of the Court in Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (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).

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 case once those issues have been decided. See 1B James W. Moore et al., Moore's Federal Practice p 0.404 (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, 112 S.Ct. 184, 116 L.Ed.2d 145 (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 p 0.404. 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); Metcal