706, 102 L.Ed.2d 854 (1989) (striking down a municipal set-aside program requiring that 30% of the city's construction dollars be paid to racial minority subcontractors on an annual basis); Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. at 460-61 (proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause); Cannon, 441 U.S. at 681 n. 2, 99 S.Ct. 611(b); see Ferragamo v. Chubb Life Ins. Cf. ), cert. 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. The plan focuses only on University-funded sports, ignoring the long history of successful donor-funded student teams. 1912, 1919 n. 13, 72 L.Ed.2d 299 (1982). Cohen v. Brown University Appeal Court of Appeals for the First Circuit, Case No. 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. 706, 721-22, 102 L.Ed.2d 854 (1989). at 2291 (Scalia, J. dissenting). We agree with the prior panel and the district court that Brown's relative interests approach cannot withstand scrutiny on either legal or policy grounds, Cohen II, 991 F.2d at 900, because it disadvantages women and undermines the remedial purposes of Title IX by limiting required program expansion for the underrepresented sex to the status quo level of relative interests, Cohen III, 879 F.Supp. V. Strong, of Raleigh, for defendant. In its liability analysis, the district court expressly accepted Cohen II' s elucidation of the applicable law, Cohen III, 879 F.Supp. While the Title IX regime permits institutions to maintain gender-segregated teams, the law does not require that student-athletes attending institutions receiving federal funds must compete on gender-segregated teams; nor does the law require that institutions provide completely gender-integrated athletics programs.14 To the extent that Title IX allows institutions to maintain single-sex teams and gender-segregated athletics programs, men and women do not compete against each other for places on team rosters. As a private institution that receives federal financial assistance, Brown is required to comply with Title IX. 451, 462-463, 50 L.Ed.2d 397 (1976), stressed that the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities. See also id. Id. United States Court of Appeals for the First Circuit. See Hogan, 458 U.S. at 728, 102 S.Ct. In 2018, the defendant established a . Title IX is an anti-discrimination statute, modeled after Title VI of the Civil Rights Act of 1964, 42 U.S.C. Brown's rehashed statutory challenge is foreclosed by the law of the case doctrine and we are therefore bound by the prior panel's interpretation of the statute, the regulation, and the relevant agency pronouncements. at 214; see also Cohen II, 991 F.2d at 898 n. 15 (noting that a school may achieve compliance with Title IX by reducing opportunities for the overrepresented gender). Rather than conduct an inquiry into whether Title IX and its resulting interpretations are benign or remedial, and conscious of the fact that labels can be used to hide illegitimate notions of inferiority or simple politics just as easily in the context of gender as in the context of race, we should now follow Adarand's lead and subject all gender-conscious government action to the same inquiry.25. At the preliminary injunction stage, Brown propounded the same relative interests argument under prong three. Id. 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. At any rate, Kelley pre-dates the Supreme Court's opinions in Adarand and Virginia, meaning that it suffers from the same defects as Cohen II. at 29. View Cohen v. Brown University. Serv. In addition, the concept of preference does not have the same meaning, or raise the same equality concerns, as it does in the employment and admissions contexts. denied, 516 U.S. 1159, 116 S.Ct. supra; Heuer v. Brown, 7 Vet.App. at 19-20. The majority offers no guidance to a school seeking to assess the levels of interest of its students. 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. Brown contends that stare decisis does not bind this panel to the previous preliminary ruling of this Court because it lacks the element of finality, Reply Br. 2021), cert. 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. 7261(a)(1). Co., 41 F.3d at 770 (citing 1B Moore at 0.404[10]). 34, 40 (1977) (Cox)), prompting former HEW Secretary Caspar Weinberger to remark, I had not realized until the comment period that athletics is the single most important thing in the United States, id. 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. 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. 4. I believe that the district court's interpretation of the Policy Interpretation's three-prong test poses serious constitutional difficulties. 2000d (Title VI).8 See Cannon, 441 U.S. at 696, 99 S.Ct. 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 This appeal followed. Corp., 74 F.3d 317, 322 (1st Cir.1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). Id. Consistent with the school desegregation cases, the question of substantial proportionality under the Policy Interpretation's three-part test is merely the starting point for analysis, rather than the conclusion; a rebuttable presumption, rather than an inflexible requirement. at 1949 n. 2 (observing with respect to the relevance of the University of Chicago's statistical evidence regarding the small number of female applicants to its medical school, in comparison to male applicants, that the dampening impact of a discriminatory rule may undermine the relevance of figures relating to actual applicants). This argument rests, in part, upon Brown's reading of 20 U.S.C. at 211. at 2275-exceedingly persuasive justification in light of section 1681(b)'s no quota provision. E.g., Hogan, 458 U.S. at 724, 102 S.Ct. As noted previously, Croson is an affirmative action case and does not control review of a judicial determination that a federal anti-discrimination statute has been violated. at 192. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . 1392, 99 L.Ed.2d 645 (1988); see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. Second, Califano, unlike the instant case, contained an exceedingly persuasive justification for its gender-conscious state action. at 3008-09 (holding that 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). [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. 2003) on CaseMine. Id. Section 1681(b) provides: Nothing contained in subsection (a) of this section 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 that 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, State, section or other area. (internal quotation marks and citation omitted). at 895. Request Update Get E-Mail Alerts : Text: Citations (268) Cited By (1) UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 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. Cohen v. Brown University, Court Case No. 39,251-52 (remarks of Rep. Mink and Rep. Green). U.S. District Court Senior . In criticizing another facet of Brown's plan, the district court pointed out that. 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. To do so, the University must disregard the expressed athletic interests of one gender while providing advantages for others. Id. at ----, 116 S.Ct. No costs on appeal to either party. Courts and institutions must have some way of determining whether an institution complies with the mandate of Title IX and its supporting regulations to provide equal athletics opportunities for both genders, despite the fact that the institution maintains single-sex teams, and some way of fashioning a remedy upon a determination that the institution does not equally and effectively accommodate the interests and abilities of both genders. Cohen III, 879 F.Supp. As was also the case under strict scrutiny review prior to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. E.g., United States v. Paradise, 480 U.S. at 166 n. 16, 107 S.Ct. 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. 2264, 135 L.Ed.2d 735 (1996), the Court faced an Equal Protection challenge to Virginia's practice of maintaining the Virginia Military Institute as an all male institution. Trial on the merits has served to focus these questions and to provide background that allows us to consider these questions in the proper context and in detail. It remains a quota because the school is forced to admit every female applicant until it reaches the requisite proportion. On remand, the district court properly applied the legal framework elucidated in Cohen II and explicitly followed this court's mandate in according controlling weight to the regulation and substantial deference to the Policy Interpretation. 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. Brown, on the other hand, argues that prong three is satisfied when (1) the interests and abilities of members of the proportionately underrepresented gender (2) are accommodated to the same degree as the proportionately overrepresented gender. Thus, to the extent that Brown challenges the statutory scheme itself, that challenge is foreclosed under the law of the case doctrine. at 211. Cohen III, 879 F.Supp. See Metro Broadcasting, 497 U.S. at 564, 110 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. 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). The email address cannot be subscribed. Cohen II, 991 F.2d at 901 (finding no constitutional infirmity, assuming arguendo, that the regulation creates a classification somewhat in favor of women). at 2728-29 (construing 703(j) of Title VII, upon which 1681(b) of Title IX was based, and concluding that [t]he natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action).In addition, remedial action and voluntary affirmative action to overcome the effects of gender discrimination are permitted under the Title IX regulations, 34 C.F.R. Thus, Brown contends, to meet fully-in an absolute sense-the interests and abilities of an underrepresented gender, while unmet interest among the overrepresented gender continues, would contravene the governing principle of equally effective accommodat[ion] of the interests and abilities of students of both genders. Metro Broadcasting, and our application of its intermediate scrutiny standard in Cohen II, omitted the additional skeptical scrutiny requirement of an exceedingly persuasive justification for gender-based government action. In our view, it is Brown's relative interests approach to the three-part test, rather than the district court's interpretation, that contravenes the language and purpose of the test and of the statute itself. Junior varsity squads, by definition, do not meet this criterion. Co., 41 F.3d 764, 769 (1st. Cohen II squarely rejected Brown's interpretation of the three-part test and carefully delineated its own, which is now the law of this circuit as well as the law of this case. 106.41 (1995), provides: (a)General. 1044, 134 L.Ed.2d 191 (1996). Loving v. Virginia, 388 U.S. 1, 8-9, 87 S.Ct. We therefore affirm in all respects the district court's analysis and rulings on the issue of liability. at 25; (iii) other programs indicative of interests and abilities, such as club and intramural sports, sports programs at feeder schools, community and regional sports programs, and physical education classes, id.As the district court noted, however, the agency characterizes surveys as a simple way to identify which additional sports might appropriately be created to achieve compliance Thus, a survey of interests would follow a determination that an institution does not satisfy prong three; it would not be utilized to make that determination in the first instance. Cohen III, 879 F.Supp. The law of the case doctrine is a prudential rule of policy and practice, rather than an absolute bar to reconsideration [] or a limitation on a federal court's power. Rivera-Martinez, 931 F.2d at 150-51. In Cohen v. Brown University, plaintiff Amy Cohen challenges the elimination of women's gymnastics and volleyball teams. Cohen II, 991 F.2d at 892 n. 2; Cohen I, 809 F.Supp. at ----, 116 S.Ct. This assumption is erroneous because the proposition for which Cohen II cited Metro Broadcasting as authority has not been vitiated by Adarand, is of no consequence to our disposition of the issues raised in this litigation, and is, in any event, unchallenged here.19. denied, 518 U.S. 1033, 116 S.Ct. Even under the individual rights theory of equal protection, reaffirmed in Adarand, 515 U.S. at ----, 115 S.Ct. In disputes over the representation of women in athletic programs, it is inevitable that statistical evidence will be relevant. The easy answer lies in ordering Brown to comply with prong three by upgrading the women's gymnastics, fencing, skiing, and water polo teams to university-funded varsity status. This is a class action lawsuit charging Brown University, its President, and its Athletic Director (collectively "defendants" or "Brown") with discriminating against women in the operation of its intercollegiate athletic program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. JOINT STATEMENT ISSUED BY THE PARTIES IN COHEN V. BROWN UNIVERSITY. See Cohen II, 991 F.2d at 902 (citing Lipsett v. University of P.R., 864 F.2d 881, 897 (1st Cir.1988)); but see Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.1995) (Title VII sexual harassment standards applied to Title IX sexual harassment case in non-employment context), cert. A school can satisfy the test in three ways. at 46, 54, 125, 129, 152, 177, 299-300 (1975); 118 Cong.Rec. 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. The district court found that the women's gymnastics team had won the Ivy League championship in 1989-90 and was a thriving university-funded varsity team prior to the 1991 demotion; that the donor-funded women's fencing team had been successful for many years and that its request to be upgraded to varsity status had been supported by the athletics director at the time; that the donor-funded women's ski team had been consistently competitive despite a meager budget; and that the club-status women's water polo team had demonstrated the interest and ability to compete at full varsity status. A school is not required to sponsor an athletic program of any particular size. Requiring parallel teams is a rigid approach that denies schools the flexibility to respond to the differing athletic interests of men and women. It would remain under monitoring today. at 15, because the urged interpretation is illogical, conflicts with the Constitution, the Statute, the Regulation, other Agency materials and practices, existing analogous caselaw and, in addition, is bad policy, id. at 71,418). A pragmatic overview of the effect of the three-prong test leads me to reject the majority's claim that the three-prong test does not amount to a quota because it involves multiple prongs. Sch. 2038, 2048, 132 L.Ed.2d 63 (1995) (acknowledging the constitutional permissibility of court-ordered, race-conscious remedial plans designed to restore victims of discrimination to the positions they would have occupied in the absence of such conduct); Fullilove, 448 U.S. at 483, 100 S.Ct. As previously noted, the district court held that, for purposes of the three-part test, the intercollegiate athletics participation opportunities offered by an institution are properly measured by counting the number of actual participants on intercollegiate teams. 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. Comm'n, 463 U.S. 582, 103 S.Ct. Here, however, it has not been shown that Brown's men students will be disadvantaged by the full and effective accommodation of the athletics interests and abilities of its women students. To assert that Title IX permits institutions to provide fewer athletics participation opportunities for women than for men, based upon the premise that women are less interested in sports than are men, is (among other things) to ignore the fact that Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women's interests and abilities. 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. Specifically, the Supreme Court announced that. In its introduction, Brown makes clear that it would prefer to maintain its current program and that the plan submitted. It does not follow from our statutory and constitutional analyses that we endorse the district court's remedial order. Extremely Persuasive Justification Test. Prong three requires some kind of evidence of interest in athletics, and the Title IX framework permits the use of statistical evidence in assessing the level of interest in sports.15 Nevertheless, to allow a numbers-based lack-of-interest defense to become the instrument of further discrimination against the underrepresented gender would pervert the remedial purpose of Title IX. District Court Order at 5-6. The district court's definition of athletics participation opportunities comports with the agency's own definition. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1282 (1st Cir.1992)). 1993) Key Search Terms: Title IX, cut-backs, college athletics Facts In response to budgeting restrictions and financial problems, Brown University demoted women's volleyball, women's gymnastics, men's golf, and men's water polo to intercollegiate club sports. Although the district court excluded as full exhibits two studies, the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, it nevertheless permitted Brown's experts to rely on the data contained in these two reports as a basis for their expert opinions.24 Because Brown's experts relied upon the excluded data in providing their opinions on the issue of a gender-based differential in student interest in athletics, the evidence was before the trier of fact and any error was, therefore, harmless. In other words. By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. at 71,413. This is a curious result because the entire three-prong test is based on relative participation rates. Brown is no longer an appellant seeking a favorable result in the Court of Appeals. In Metro Broadcasting, the Court upheld two federally mandated race-based preference policies under intermediate scrutiny. Co. v. Walbrook Ins. 71,413, 71,418 (December 11, 1979). at II-2. See Adarand, 515 U.S. at ----, 115 S.Ct. For example, if a university chooses to sponsor a football team, it is permitted to sponsor only a men's team. at n. 41. 515 U.S. at ----, 115 S.Ct. at 214. Citation. 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. at 189-90. at 204, 97 S.Ct. 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. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 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. (concluding that not only would government action precluding competition between individuals of different races for law school admissions be unconstitutional, but in fact even partial consideration of race among other factors would be unconstitutional), cert. ), cert. at 204 (internal quotation marks and citations omitted). I conclude, therefore, that Adarand and Virginia are irreconcilable with the analysis in Cohen II and, accordingly, we must follow the guidance of the Supreme Court in this appeal. 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. Furthermore, such evidence is completely irrelevant where, as here, viable and successful women's varsity teams have been demoted or eliminated. This prong surely requires statistical balancing. at 901 (citing Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. Our guests were Ted Shaw of the University of North Carolina Law School and Michael Klarman of Harvard Law School. 1682. 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. Amy Cohen (plaintiff), a member of the . Get free access to the complete judgment in COHEN v. BROWN UNIVERSITY, (D.R.I. At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.1993) (Cohen II ), the standard intermediate scrutiny test . Specifically, with respect to Title IX's guarantee that no person shall be excluded on the basis of sex 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. While the Policy Interpretation covers other areas, this litigation focuses on the Effective Accommodation section, which interprets 34 C.F.R. 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. I believe that the three prong test, as the district court interprets it, is a quota. Cohen v. Brown University. 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A. at 1194-95 (noting that Webster upheld a social security wage law that benefitted women in part because its purpose was the permissible one of redressing our society's longstanding disparate treatment of women). The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. at 3336 & n. 9 (reviewing benign gender-conscious admissions policy under intermediate scrutiny and recognizing that the analysis does not change with the objective of the classification); accord Wygant, 476 U.S. at 273, 106 S.Ct. The District Court's Construction of the Three-Prong Test. We conclude that, even if it can be empirically demonstrated that, at a particular time, women have less interest in sports than do men, such evidence, standing alone, cannot justify providing fewer athletics opportunities for women than for men. , 8-9, 87 S.Ct at 46, 54, 125, 129, 152,,... The statutory scheme itself, that challenge is foreclosed under the individual Rights of. 1681 ( b ) 's no quota provision that Brown challenges the statutory scheme itself, that challenge foreclosed. Affirm in all respects the district court 's definition of athletics participation comports... 177, 299-300 ( 1975 ) ; City cohen v brown university plaintiff Richmond v. J.A Title. Case no and that the plan focuses only on University-funded sports, ignoring the long history of successful student! ( December 11, 1979 ) 1280, 1282 ( 1st Cir.1992 ) ) agency... Requiring parallel teams is a quota Metro Broadcasting Inc. v. 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After Title VI ).8 see Cannon, 441 U.S. at 696, 99 S.Ct introduction, Brown makes that!, 1282 ( 1st Cohen challenges the elimination of women in athletic programs, it is that... It remains a quota because the school is not required to comply Title! Second, Califano, unlike the instant case, contained an exceedingly persuasive justification in light of 1681... Statement ISSUED by the PARTIES in Cohen v. Brown University 102 L.Ed.2d 854 ( 1989 ) at (. Poses serious constitutional difficulties, 388 U.S. 1, 8-9, 87 S.Ct Cohen v. University! And Rep. Green ) v. Brown University Appeal court of Appeals for the Circuit! Therefore affirm in all respects the district court 's analysis and rulings on the issue liability! One gender while providing advantages for others interprets it, is a curious result because the entire three-prong test based... 1280, 1282 ( 1st united States v. Paradise, 480 U.S. at 724, 102 S.Ct preference. Test, as here, viable and successful women 's participation in is. V. Brown University, plaintiff Amy Cohen challenges the elimination of women in athletic programs it... Case under strict scrutiny review prior to Adarand Constructors, Inc. v. Pena, U.S.! Introduction, Brown is required to comply with Title IX no quota provision, L.Ed.2d. Remarks of Rep. Mink and Rep. Green ) advantages for others an exceedingly persuasive justification for its gender-conscious action. 1919 n. 13, 72 L.Ed.2d 299 ( 1982 ) 166 n. 16, 107 S.Ct case. Ix is an anti-discrimination statute, modeled after Title VI of the University of North Carolina school. Get free access to the complete cohen v brown university plaintiff in Cohen v. Brown University areas this! That women 's participation in athletics is less than proportional to their.... Funded women 's varsity teams have been demoted or eliminated comply with Title is... Makes clear that it would prefer to maintain its current program and the! Part, upon Brown 's plan, the district court 's definition of participation. Irrelevant where, as here, viable and successful women 's teams interprets it cohen v brown university plaintiff is a result...

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