cohen v brown university plaintiff

the ratio of women athlete in Brown University in 1991. Accordingly, we have held that only a few exceptional circumstances can overcome the interests served by adherence to the doctrine and these exceptions are narrowly circumscribed. After considering a large number of public comments, OCR published the final Policy Interpretation. Brown, who previously served in the Antitrust Division of the United States Department of Justice, brings to his role extensive experience leading complex litigation, particularly 14. 684, 121 L.Ed.2d 605 (1993); Young v. Herring, 917 F.2d 858 (5th Cir.1990); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.1981), cert. at 2275-exceedingly persuasive justification in light of section 1681(b)'s no quota provision. at 1176 (citation omitted). Co., 3 F.3d 471, 475 (1st Cir.1993), cert. at 906-07. 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. at 71,418. 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. According to Brown's relative interests interpretation of the equal accommodation principle, the gender-based disparity in athletics participation opportunities at Brown is due to a lack of interest on the part of its female students, rather than to discrimination, and any attempt to remedy the disparity is, by definition, an unlawful quota. Brown's relative interests approach is not a reasonable interpretation of the three-part test. Only where the plaintiff meets the burden of proof on these elements and the institution fails to show as an affirmative defense a history and continuing practice of program expansion responsive to the interests and abilities of the . [n]othing contained [therein] shall 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 with respect to the total number or percentage of persons of the sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community. I am less interested in the actual term quota than the legally cognizable characteristics that render a quota scheme impermissible. Amy Cohen (plaintiff), a member of the women's gymnastics team, and several other student-athletes filed suit against Brown alleging that the institution violated Title IX. benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives. In short, Brown treats the three-part test for compliance as a one-part test for strict liability. As previously noted, Title IX itself specifies only that the statute shall not be interpreted to require gender-based preferential or disparate treatment. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. . In light of the above, Brown argues that prong three is in fact ambiguous with respect to whether fully means (1) an institution must meet 100% of the underrepresented gender's unmet reasonable interest and ability, or (2) an institution must meet the underrepresented gender's unmet reasonable interest and ability as fully as it meets those of the overrepresented gender. 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. 1992). at 2117). This is a curious result because the entire three-prong test is based on relative participation rates. Adarand overruled Metro Broadcasting to the extent that Metro Broadcasting is inconsistent with Adarand's holding that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. Adarand, 515U.S. The binding authority of Cohen II, therefore, is lessened by the fact that it was an appeal from a preliminary injunction. Cohen v. Brown University, Court Case No. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. As to the propriety of Brown's proposal to come into compliance by the addition of junior varsity positions, the district court held: Positions on distinct junior varsity squads do not qualify as intercollegiate competition opportunities under the Policy Interpretation and should not be included in defendants' plan. at 214. 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. They heated the cellar accordingly but this raised the temperature on the floor above, which caused the plaintiff's stock of delicate brown paper to dry and diminish in value. The Court also requires a focus on whether the proffered justification is exceedingly persuasive. Id. 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. What is important for our purposes is that the Supreme Court appears to have elevated the test applicable to sex discrimination cases to require an exceedingly persuasive justification. This is evident from the language of both the majority opinion and the dissent in Virginia. Modified Order of May 4, 1995. That case concerned Congress' provision, under the Social Security Act, for a lower retirement age for women than for men, with the result that, as between similarly situated male and female wage-earners, the female wage-earner would be awarded higher monthly social security payments, id. The district court ordered Brown to elevate and maintain women's gymnastics, women's water polo, women's skiing, and women's fencing to university-funded varsity status. Id. A school is not required to sponsor an athletic program of any particular size. At the preliminary injunction stage, Brown propounded the same relative interests argument under prong three. 845, 848-49, 78 L.Ed.2d 663 (1984) (instructing appellate courts to ignore errors that do not affect the essential fairness of the trial). ; see also United States v. Reveron Martinez, 836 F.2d 684, 687 n. 2 (1st Cir.1988) (To be sure, there may be occasions when courts can-and should-loosen the iron grip of stare decisis. The refusal to accept surveys of interest levels as evidence of interest raises the question of what indicators might be used. Brown loses and is required to restore the programs. 5808 (1972) (remarks of Sen. Bayh) (quoted in Haffer, 524 F.Supp. Contemporaneously, Brown demoted two men's teams, water polo and golf, from university-funded to donor-funded varsity status. 978, 1001 (D.R.I.1992) ("Cohen I "). The unprecedented success of these athletes is due, in no small measure, to Title IX's beneficent effects on women's sports, as the athletes themselves have acknowledged time and again. 2758, 65 L.Ed.2d 902 (1980) (upholding a federal program requiring state and local recipients of federal public works grants to set aside 10% of funds for procuring goods and services from minority business enterprises); United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2003) on CaseMine. at ----, 116 S.Ct. As Brown puts it, [t]he [equal protection] violation arises from the court's holding that Title IX requires the imposition of quotas, preferential treatment, and disparate treatment in the absence of a compelling state interest and a determination that the remedial measure is narrowly tailored to serve that interest. Reply Br. In Fullilove, a plurality of the Court applied a standard subsequently acknowledged to be intermediate scrutiny, see Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. Idk. 2. at 2274 (citing J.E.B. 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. Id. This approach is entirely contrary to Congress's unmistakably clear mandate that educational institutions not use federal monies to perpetuate gender-based discrimination, id. Brown asserts, in the alternative, that if the district court properly construed the test, then the test itself violates Title IX and the United States Constitution. To adopt the relative interests approach would be, not only to overrule Cohen II, but to rewrite the enforcing agency's interpretation of its own regulation so as to incorporate an entirely different standard for Title IX compliance. 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. It is not necessary to equate race and gender to see that the logic of Adarand-counseling that we focus on the categories and justifications proffered rather than the labels attached-applies in the context of gender. at 2274. Rather than simply apply the traditional test requiring that gender classifications be substantially related to an important government objective, Clark v. Jeter 486 U.S. 456, 461, 108 S.Ct. In Cohen v. Brown University, plaintiff Amy Cohen challenges the elimination of women's gymnastics and volleyball teams. at 8-9 n. 2 (While [other] indications of interest may be helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indicia[,] an institution is expected to meet the actual interests and abilities of its students and admitted students.). at 4-5, and concludes that if the Court determines that this plan is not sufficient to reach proportionality, phase two will be the elimination of one or more men's teams, id. Id. 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. 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. 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). at 56-57. 8. This policy is comparable to prong one of the three prong test and is, without a doubt, a quota. at 456, and the test applied in both Metro Broadcasting and Webster.The phrase exceedingly persuasive justification has been employed routinely by the Supreme Court in applying intermediate scrutiny to gender discrimination claims and is, in effect, a short-hand expression of the well-established test. of Educ., 897 F.Supp. The school argues women are less interested in sports than men. 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. 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. 1572, 55 L.Ed.2d 797 (1978) (summary affirmance of a district court decision upholding a provision of the Railroad Retirement Act that allowed women to retire at age 60 while men could not retire until age 65). Cohen II's assumption that a regulation slanted in favor of women would be permissible, Cohen II 991 F.2d at 901, and by implication that the same regulation would be impermissible if it favored men, was based on Metro Broadcasting, which held that benign race-based action by the federal government was subject to a lower standard than non-remedial race-based action. In any event, the three-part test is, on its face, entirely consistent with 1681(b) because the test does not require preferential or disparate treatment for either gender. In concluding that the district court's interpretation and application of the three-part test creates a quota, Brown errs, in part, because it fails to recognize that (i) the substantial proportionality test of prong one is only the starting point, and not the conclusion, of the analysis; and (ii) prong three is not implicated unless a gender-based disparity with respect to athletics participation opportunities has been shown to exist. For the reasons that follow, we conclude that no exception to the law of the case doctrine applies here and, therefore, that Cohen II's rulings of law control the disposition of this appeal. In Cohen II we stated that it is established beyond peradventure that, where no contrary legislative directive appears, the federal judiciary possesses the power to grant any appropriate relief on a cause of action appropriately brought pursuant to a federal statute. 991 F.2d at 901 (citing Franklin, 503 U.S. at 70-71, 112 S.Ct. Irving, 49 F.3d at 834. Brown therefore should be afforded the opportunity to submit another plan for compliance with Title IX. See, e.g., Mississippi Univ. Bernier v. Boston Edison Co.: bad driver lady crashed into bad . 515, ----, ----, 116 S.Ct. (emphasis added). In Marengi v. 6 Forest Road LLC, 491 Mass. The panel cited as authority Metro Broadcasting, 497 U.S. at 565-66, 110 S.Ct. This appeal followed. at ----, 116 S.Ct. The prior panel considered and rejected Brown's approach, observing that Brown reads the full out of the duty to accommodate fully and effectively. Cohen II, 991 F.2d at 899. 3221, 77 L.Ed.2d 866 (1983), agreed that injunctive relief and other equitable remedies are appropriate for violations of Title VI. It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. of Cal. 1192, 51 L.Ed.2d 360 (1977), which has not been explicitly overruled. 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. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. Temple Univ. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. (c)Equal Opportunity. 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. It is women and not men who have historically and who continue to be underrepresented in sports, not only at Brown, but at universities nationwide. Request Update Get E-Mail Alerts : Text: Citations (268) Cited By (1) UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. Indeed, every circuit court to have reviewed a Title IX claim of discrimination in athletics since Cohen II was decided is in accord with its explication of the Title IX regime as it applies to athletics. Affirmed in part, reversed in part, and remanded for further proceedings. The school argues women are less interested in sports than men. 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. See Grivois v. Brown, 6 Vet. I leave it entirely to Brown's discretion to decide how it will balance its program to provide equal opportunities for its men and women athletes. Establishing that a school is moving inexorably closer to satisfying a requirement that demands statistical balancing can only be done by demonstrating an improvement in the statistical balance. at 1064 n. 16; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 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. 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. Brown also contends that the district court erred in excluding the NCAA Annual Report. We reject both premises.17 Brown's implicit reliance on Adarand as contrary intervening controlling authority that warrants a departure from the law of the case doctrine is misplaced because, while Adarand does make new law, the law it makes is wholly irrelevant to the disposition of this appeal, and, even if Adarand did apply, it does not mandate the level of scrutiny to be applied to gender-conscious government action. 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. To do so, the school must fully and effectively accommodate the underrepresented gender's interests and abilities, even if that requires it to give the underrepresented gender (in this case, women) what amounts to a larger slice of a shrinking athletic-opportunity pie. Early in the opinion, the majority approvingly cites to the statistical evaluations conducted in Cohen I, Cohen II, and Cohen III. We held that the district court erred in placing upon Brown the burden of proof under prong three of the three-part test used to determine whether an intercollegiate athletics program complies with Title IX, discussed infra. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.44 Fed.Reg. See Cohen II, 991 F.2d at 901 ([T]here is no need to search for analogies where, as in the Title IX milieu, the controlling statutes and regulations are clear.). Id. and Tel. See Hogan, 458 U.S. at 724 & n. 9, 102 S.Ct. at 2294 (citations omitted). Id. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. The preliminary injunction issued by the district court in Cohen I, 809 F.Supp. Expanding women's athletic opportunities in areas where there is proven ability and interest is the very purpose of Title IX and the simplest, least disruptive, route to Title IX compliance at Brown. at 188. See Horner v. Kentucky High Sch. at 71,413. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th Cir.) at 898. We have narrowly confined the intervening controlling authority exception to Supreme Court opinions, en banc opinions of this court, or statutory overrulings. Synopsis of Rule of Law. Cohen II, 991 F.2d at 900-901. at 18 (citing Adarand, 515U.S. 398. 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. Thus, to the extent that Brown challenges the statutory scheme itself, that challenge is foreclosed under the law of the case doctrine. Finally, it is important to remember that Brown University is a private institution with a constitutionally protected First Amendment right to choose its curriculum. 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. 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. . 30,406, 30,409 (remarks of Sen. Bayh); 117 Cong.Rec. Even under the individual rights theory of equal protection, reaffirmed in Adarand, 515 U.S. at ----, 115 S.Ct. The prior panel held that [t]he fact that the overrepresented gender is less than fully accommodated will not, in and of itself, excuse a shortfall in the provision of opportunities for the underrepresented gender. Cohen II, 991 F.2d at 899. 184, 116 L.Ed.2d 145 (1991)). In this case, however, the record before the prior panel was sufficiently developed and the facts necessary to shape the proper legal matrix [we]re sufficiently clear, Cohen II, 991 F.2d at 904, and nothing in the record subsequently developed at trial constitutes substantially different evidence that might undermine the validity of the prior panel's rulings of law. No. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. Id. 1442, 94 L.Ed.2d 615 (1986) (upholding a temporary program authorizing a county agency to consider sex and race as factors in making promotions in order to achieve a statistically measurable improvement in the representation of women and minorities in major job classifications in which they had been historically underrepresented); Wygant v. Jackson Bd. After mapping Title IX's rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties' arguments, we affirm. 19. (1971), reprinted in 1972 U.S.C.C.A.N. Get free access to the complete judgment in COHEN v. BROWN UNIVERSITY, (D.R.I. 106.41, deserves controlling weight, 991 F.2d at 895; that the Policy Interpretation warrants substantial deference, id. 515, ---------, 116 S.Ct. 1681(b) as a categorical proscription against consideration of gender parity. 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. 20 U.S.C. Rather than create a quota or preference, this unavoidably gender-conscious comparison merely provides for the allocation of athletics resources and participation opportunities between the sexes in a non-discriminatory manner. 1211, 1221-22, 79 L.Ed.2d 516 (1984) (holding that Title IX was program-specific and thus applied only to those university programs that actually receive federal funds and not to the rest of the university), with athletics prominently in mind. [a]n institution does not provide equal opportunity if it caps its men's teams after they are well-stocked with high-caliber recruits while requiring women's teams to boost numbers by accepting walk-ons. No aspect of the Title IX regime at issue in this case-inclusive of the statute, the relevant regulation, and the pertinent agency documents-mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals. Rather than respecting the school's right to determine the role athletics will play in the future-including reducing the opportunities available to the formerly overrepresented gender to ensure proportionate opportunities-the district court and the majority demand that the absolute number of opportunities provided to the underrepresented gender be increased. at 469, 109 S.Ct. at 189. Finally, the tremendous growth in women's participation in sports since Title IX was enacted disproves Brown's argument that women are less interested in sports for reasons unrelated to lack of opportunity. Thinx period underwear settles $4 million class action lawsuit after 'forever chemicals' that can cause fertility issues were found in high quantities near the CROTCH of its supposed 'organic and . 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. Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. at 2491. 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. Brown offers remarkably little in the way of analysis or authority to support its blithe contention that we are free to disregard Cohen II in disposing of this appeal. E.g., A.M. Capen's Co. v. American Trading and Prod. [T]he Court proceeds to interpret exceedingly persuasive justification in a fashion that contradicts the reasoning of Hogan and our other precedents. Id. In the 23 years that have since elapsed, this position has never commanded a majority of the Court, and has never been adopted by this court. See also Weber, 443 U.S. at 201-02, 99 S.Ct. That prong merely recognizes that a school may not be able to meet the quotas of the first or third prong immediately, and therefore deems it sufficient to show program expansion that is responsive to the interests of the underrepresented sex. Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. of Pa., 812 F.Supp. ("Title IX"). 5807 (1972) (statement of Sen. Bayh); 117 Cong.Rec. 44 Fed.Reg. Thus, at the heart of this litigation is the question whether Title IX permits Brown to deny its female students equal opportunity to participate in sports, based upon its unproven assertion that the district court's finding of a significant disparity in athletics opportunities for male and female students reflects, not discrimination in Brown's intercollegiate athletics program, but a lack of interest on the part of its female students that is unrelated to a lack of opportunities. By Arthur Bryant and Lori Bullock* Cohen v. Brown University, which the First Circuit just referred to as "This landmark Title IX case," started in April 1992, after the school stopped funding its varsity women's gymnastics and volleyball teams.Eleven female athletes, including Amy Cohen, Megan Hull, Lisa Stern Kaplowitz, Eileen Rocchio, and Jennifer Todd, fought back. 106.37(c) and 106.41. 1681(a) (1988). Opinion for Amy Cohen v. Brown University, 991 F.2d 888 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. First, Califano did not necessarily rule on benign classifications, as Metro Broadcasting and Adarand clearly did. United States Court of Appeals for the First Circuit. denied, 518 U.S. 1033, 116 S.Ct. Ready, set, go. at 3338 (In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.). The Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports. 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. See Adarand Constr. of Pa., 7 F.3d 332 (3d Cir.1993); Roberts v. Colorado State Bd. To require gender-based preferential or disparate treatment majority approvingly cites to the extent that Brown challenges the elimination women... At 724, 102 S.Ct 201-02, 99 S.Ct 115 S.Ct the Policy Interpretation, 388 U.S. 1,,..., to the complete judgment in Cohen I, 809 F.Supp 420 U.S. 636 638! Proceeds to interpret exceedingly persuasive justification in light of section 1681 ( b ) a. Court opinions, en banc opinions of this court affirmed the district court & # x27 s... 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Of what indicators might be used, 116 S.Ct necessarily rule on benign classifications, as Broadcasting! Gender-Based discrimination, id the three prong test and is required to sponsor an athletic program of any particular.... Majority opinion and the dissent in Virginia institutions not use federal monies to gender-based... Prong test and is, without a doubt, a quota scheme impermissible is less than proportional to enrollment. Of equal protection, reaffirmed in Adarand, 515 U.S. at 724 102... By the fact that it was an appeal from a preliminary injunction issued by the district court in Cohen,... Statutory overrulings than the legally cognizable characteristics that render a quota scheme.... ( 1977 ), agreed that injunctive relief and other equitable remedies are appropriate for of. Reflects women 's participation in athletics is less than proportional to their enrollment 95. Of Title VI at 895 ; that the district court & # ;... The statute shall not be interpreted to require gender-based preferential or disparate..

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