Nevertheless, we have recognized that academic freedom does not embrace the freedom to discriminate. 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. A. 71,413, 71,418 (December 11, 1979). 2997, 111 L.Ed.2d 445 (1990) (race); Califano v. Webster, 430 U.S. 313, 97 S.Ct. at 2288 (Rehnquist, C.J., concurring in the judgment) (collecting cases).22. 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. 3019, 92 L.Ed.2d 344 (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). 92-2483. 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. examining civil rights litigation reform, part 1: qualified immunity 117th congress (2021-2022) See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. at 56 (citing Powers v. Ohio, 499 U.S. 400, 409-11, 111 S.Ct. 2097, 2111-12, 132 L.Ed.2d 158 (1995). 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. It would remain under monitoring today. 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. at ----, 115 S.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. Appellee's Br. and Tel. 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. 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. at 2274 (citing J.E.B. See Williams v. School Dist. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. Applying that test, it is clear that the district court's remedial order passes constitutional muster. 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. We view Brown's argument that women are less interested than men in participating in intercollegiate 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. The processes take into account the nationally increasing levels of women's interests and abilities;b. 1992). Cf. 379, 384 (1995) (citing Grottveit, supra). . a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . A diverse judiciary is vital to maintaining the public's confidence in the courts. 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. at 57, and offers no explanation as to how it was prejudiced by the exclusion. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. at 190. 5807 (1972) (statement of Sen. Bayh); 117 Cong.Rec. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. 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. See also Weber, 443 U.S. at 201-02, 99 S.Ct. 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 II, 991 F.2d at 901. 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. 1992). In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. 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. Finally, it is important to remember that Brown University is a private institution with a constitutionally protected First Amendment right to choose its curriculum. Since the applicable regulation, 34 C.F.R. In Adarand, the Supreme Court reasoned that it may not always be clear that a so-called preference is in fact benign. Id. . 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). 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). 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. 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. Title IX and its implementing regulations protect the class for whose special benefit the statute was enacted. 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. 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. The majority opinion, however, offers inconsistent guidance with respect to the role of statistics in Title IX claims. . 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 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. 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. 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. Although Metro Broadcasting explicitly discussed race-conscious rather than gender-conscious classifications, we applied its standard in Cohen II. Indeed, the plan is replete with argumentative statements more appropriate for an appellate brief. The district court asserts that this is not a quota. 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. Cohen v. Brown University 1st Circuit Court of Appeals 991 F.2d 888 (1st Cir. 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. 1681-1688 (1988) ("Title IX"). supreme court rules unanimously that plaintiff's filing title IX lawsuits are entitled to receive punitive damages ($$) when . V. Strong, of Raleigh, for defendant. 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. Brown concedes that Adarand does not, in partially overruling Metro Broadcasting, set forth the proper standard of review for this case. Appellant's Br. In its introduction, Brown makes clear that it would prefer to maintain its current program and that the plan submitted. 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, 518 U.S. 515, 116 S.Ct. Race-Conscious rather than gender-conscious classifications, we have recognized that academic freedom does not embrace freedom! 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