Cohen v. Brown University

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation101 F.3d 155
Docket NumberNo. 95-2205,95-2205
Parties, 114 Ed. Law Rep. 394, 45 Fed. R. Evid. Serv. 1369 Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. . Heard
Decision Date01 April 1996

Joan A. Lukey, Boston, MA, and Walter B. Connolly, Jr., Detroit, MI, with whom Hale and Dorr, Alison B. Marshall, Washington, DC, Miller, Canfield, Paddock & Stone, Beverly E. Ledbetter, General Counsel, Brown University, Julius C. Michaelson, Jeffrey S. Michaelson and Michaelson & Michaelson, Providence, RI, were on brief for appellants.

Martin Michaelson, with whom Amy Folsom Kett, Washington, DC, Suzanne M. Bonnet, Hogan & Hartson L.L.P., Denver, CO, and Sheldon E. Steinbach, Washington, DC, General Counsel, American Council on Education, were on brief for American Council on Education, Association of American Universities, National Association of Independent Colleges and Universities, and National Association of State Universities and Land-Grant Colleges, amici curiae.

George A. Davidson, Carla A. Kerr, Seth D. Rothman and Hughes Hubbard & Reed, on brief for Baylor University, Boston University, Colgate University, College of the Holy Cross, Colorado State University, Fairfield University, George Washington University, John Hopkins University, Lafayette College, New York University, Saint Peter's College, Southern Methodist University, Tulane University, University of Arkansas, University of Nebraska, University of Notre Dame, and Wake Forest University, amici curiae.

Melinda Ledden Sidak, Washington, DC, and Anita K. Blair, Arlington, VA, on brief for The Independent Women's Forum, amicus curiae.

Stephen S. Ostrach, Todd S. Brilliant, New York City, and New England Legal Foundation, on brief for American Baseball Coaches Association, College Swim Coaches Association of America, National Wrestling Coaching Association and United States Water Polo, amici curiae.

Lynette Labinger, with whom Roney & Labinger, Amato A. DeLuca, DeLuca & Weizenbaum, Ltd., Raymond Marcaccio, Blish & Cavanagh, Providence, RI, Sandra L. Duggan, Sandra L. Duggan, Esq., P.C., Arthur H. Bryant, Leslie A. Brueckner, La Jolla, CA, and Trial Lawyers for Public Justice, P.C., were on brief for appellees.

Deborah L. Brake, with whom Marcia D. Greenberger, Judith C. Appelbaum and National Women's Law Center were on brief for National Women's Law Center, American Association of University Women/AAUW Legal Advocacy Fund, American Civil Liberties Union Women's Rights Project, California Women's Law Center, Center For Women Policy Studies, Connecticut Women's Education and Legal Fund, Equal Rights Advocates, Feminist Majority Foundation, Girls Incorporated, National Association for Girls and Women in Sports, National Association for Women in Education, National Coalition for Sex Equity in Education, National Commission on Working Women, National Council of Administrative Women in Education, National Education Association, National Organization for Women Foundation, NOW Legal Defense and Education Fund, National Softball Coaches Association, Northwest Women's Law Center, Parents for Title IX, Rhode Island Affiliate American Civil Liberties Union, Women Employed, Women's Basketball Coaches Association, Women's Law Project, Women's Legal Defense Fund, Women's Sports Foundation, and YWCA of the USA, amici curiae.

Deval L. Patrick, Assistant Attorney General, Isabelle Katz Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey and Lisa W. Edwards, Attorneys, Department of Justice, on brief for the United States, amicus curiae.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and Stahl, Circuit Judge.

BOWNES, Senior Circuit Judge.

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 ("NCA...

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