Amicus Curiae Brief — Brown University v. Cohen

Supreme Cova

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MAR 21 1997

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In THE

Suprene Cow of the United States

OCTOBER TERM, 1996

BROWN UNIVERSITY, et al.,

. Petitioners,

Amy COHEN, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF AMICI CURIAE, HON. J. DENNIS HASTERT

OF ILLINOIS, JOHN A. BOEHNER OF OHIO,

JACK KINGSTON OF GEORGIA, BILL McCULLOM

OF FLORIDA, TOM DELAY OF TEXAS,

MICHAEL D. CRAPO OF IDAHO, JOHN SHIMKUS

OF ILLINOIS, THOMAS W. EWING OF ILLINOIS,

AND OTHER MEMBERS OF CONGRESS

(Additional Members Listed on Inside Cover)

IN SUPPORT OF PETITIONERS

Of Counsel: DANIEL V. KINSELLA *

DALE ANDERSON DONALD W. ANDERSON

3675 Birchpond Road BurbIiT & RADZIvs,

Eagan, MN 55122 CHARTERED

(612) 456-9239 333 West Wacker Drive

Suite 2600

CHARLEs D. VOGEL Chicago, IL 60606

Bloomington, IL 61704

(309) 662-0608 * Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

SO

Additional Members of Congress

Greg Ganske of Iowa Gerald B.H. Solomon

Mac Collins of Georgia of New York

Barbara Cubin of Wyoming Scott L. Klug of Wisconsin

Charles W. Pickering Chris Cannon of Utah

of Mississippi ee Asa Hutchinson of Arkansas

William M. Thomas Rob Portman of Ohio

of California J.C. Watts, Jr. of Oklahoma

Lindsey O. Graham Matt Salmon of Arizona

vf South Carolina Rick Hill of Montana

Randy “Duke” Cunningham Fred Upton of Michigan

of California Wally Herger of California

John E. Peterson Cliff Stearns of Florida

of Pennsylvania Joe Skeen of New Mexico

Donald A. Manzullo Mike Parker of Mississippi

of Illinois Lamar S. Smith of Texas

John T. Doolittle Saxby Chambliss of Georgia

of California Frank D. Lucas of Oklahoma

Cass Ballenger Sue W. Kelly of New York

of North Carolina Bob Stump of Arizona

Christoper H. Smith Porter J. Goss of Florida

of New Jersey Richard Burr

Tom Latham of Iowa of North Carolina

Doug Bereuter of Nebraska Charlie Norwood of Georgia

Bud Shuster of Pennsylvania Ernest J. Istook, Jr.

Jon Christensen of Nebraska of Oklahoma

Sam Johnson of Texas Helen Chenoweth of Idaho

United States Senator

Phil Gramm of Texas

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................~--............ iii

INTEREST OF AMICI CURIAE ....................--.—..-... 1

STATEMENT OF THE CASE ..000 2000... 2

SUMMARY OF ARGUMENT &) 8

REASONS FOR GRANTING THE WRIT _.._............ 4

I. BY GRANTING THE PETITIONER’S PETI-

TION THIS COURT CAN RESOLVE ISSUES

INVOLVING THE CONSTRUCTION OF

TITLE IX AND THE DEFERENCE TO BE

GIVEN AN AGENCY’S POLICY INTERPRE-

» = RRIF Tire neta rey CIR ae cm Cot 6

A. Whether an Enforcement Policy Is Entitled

to the Same Deference as a Regulation ._.._... 7

B. Whether a “Safe Harbor” Regulation Should

Be Interpreted as Creating an Affirmative

ia a a 8

C. Whether an Agency Interpretation Creating

Gender-Based Classifications Is Entitled to

CE IRD SIE, eRe ide DE EA ee 9

Il. BY GRANTING THE PETITION THIS

COURT CAN RESOLVE THE ISSUE OF

WHETHER TITLE IX IS TO BE CON-

STRUED AS ANALOGOUS TO THE CASES

ARISING UNDER TITLE VII OF THE CIVIL

ree Mare GO BONG foci 10

III. BY GRANTING THE PETITION THIS COURT —

CAN CLARIFY WHETHER PROPORTION-

ALITY IS A GENDER-BASED CLASSIFICA-

ii

TABLE OF CONTENTS—Continued

Page

IV. BY GRANTING THE PETITION THIS

COURT CAN RESOLVE WHAT REQUIRE-

MENTS APPLY TO GENDER-BASED CLAS-

SIFICATIONS IN LIGHT OF COMMON-

WEALTH OF VRGINIA ...... 14

CONCLUSION ntinsfcapdscsniateidnesnstnlshctanetiirta aS

iii

TABLE OF AUTHORITIES

CASES Page

Adarand Constructors v. Pena, —— U.S. ——,

125 B.Ct. 3007 01906) —.............. 4, 12, 13, 14, 15

Atchison, T&S.F.R. Co. v. Scarlett, 30 U.S. 471,

57 S.Ct. 541, 81 L.Ed.2d 748 (1987) ....0022.2000... 7

Batterton v. Francis, 482 U.S. 416, 97 S.Ct. 2399,

op 8 gs amare en a ee 7

Brunet v. City of Columbus, 1 F.8d 390 (6th Cir.

1998), cert. denied, 114 S.Ct. 1190 (1994)........ 15

City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989) 14

Cohen v, Brown University, 991 F.2d 888 (1st Cir.

I ieiichntlesinciteniahasiapstiscinatcclasoniniicasnpgiicstides ti MANN, a a, 6,9

Cohen v. Brown University, 101 F.3d 155 (1st Cir.

SRI ESSERE ve Oi ee ae ot a 6,13

Conlin v. Blanchard, 890 F.2d 811 (6th Cir.

1989) nae Pee Se eee Oe 15

Ensley Brancy, NAACP v. Seibels, 31 F.3d 1548

I a a ak 15

Favia v. Indiana University of Pennsyivania, 7

ff EB fy WR: SORSRRRUE irene eneienerene ee meee 11

Franklin v. Gwinnett County Public School, 508

tA a ot 10

General Electric Co. v. Gilbert, 429 U.S. 125, 97

S.Ct. 401, 50 L.Ed.2d 348 (1976) .....000002 2... 7

Griggs v. Duke Power Co., 401 U.S. 414 (1971).... 11

Hazelwood School Dist. v. U.S., 483 U.S. 299

gpk BAER NE eR as eI ae OBE 11

Johnson v. Transportation Agency, Santa Clara

County, 480 U.S. 616 (1987) 12

Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.

1994), cert. denied, 115 S.Ct. 988 (1995) .......... 6, 11, 12

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(9 SESE CART SUS anna a tse eae Oe OS ren 11

Milwaukee County Pavers Ass’n v. Fiedler, 922

pe By Eg RSS) b SR ae enna Sees eer eee 16

Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39

Se I re 7

Pederson v. Louisiana State University, 912 F.

Bae. Gee ta. 2m. 2008) ................................... 8, 6, 13

iv

TABLE OF AUTHORITIES—Continued

Page

Price Waterhouse v. Hopkins, 490 U.S. 228

§ _, PERE SRO RNC ne SE POR Se! MESES. ofrlnd co rod 11

Regents of the University of California v. Bakke,

G6 UG: Ge Stee os a ae 16

Roberts v. Colorado State Board of Agriculture,

O06 FE Gee Cieee? kh ee 10

Skidmore v. Swift & Co., 328 U.S. 184, 65 S.Ct.

161: ie: eee 2... 8

St. Mary’s Honor Center v. Hicks, 509 U.S. ——,

IBntan: Be tee SS 11

Texas Dept. of Community Affairs v. Burdine, 450

ais BED Fred eer ee 12

United States v. Commonwealth of Virginia, ——

U.S. ——, 116 S.Ct. 2264 (1996) ..........0..0...... 9, 14, 15

United States v. Mersky, 361 U.S. 481, 80 S.Ct.

(Lea oie SF. 7

United Steelworkers v. Weber, 448 U.S. 1938

CRT msctsciinite es Te 12

Yusif v. Vassar College, 35 F.8d 709 ...............0....... 11

STATUTES AND OTHER AUTHORITY

Title VII of the Civil Rights Act of 1964, 42

U.S.C. Section 2000e, et seq. -..............022000.ee 10

Title IX of the Education Amendments of 1972,

20 Us. Bsaee 2 a ee ee 2

H.E.W. Policy Interpretation, 44 Fed. Reg. 71,418

CRF ssc citinteecticccaccccstinscics iudcicee at. 4

Legal Guidance on the Implications of the Supreme

Court’s Decision in Adarand Constructors, Inc.,

1995 Westlaw 885775 (June 28, 1995) —......... 10, 15

Clarification of Intercollegiate Athletics Policy

Guidance, U.S. Department of Education Office

for Civil Rights (1006) <..<2<<:2:..-.2.22..02.2.....2.... 13

Ginsburg, Sexual Equality under the Fourteenth

Amendment and Equal Rights Amendment,

1979 Washington U.L.Q. 161 ..... 2200000... 16

In THE

Suprene Court of the United States

OCTOBER TERM, 1996

No. 96-1321

BROWN UNIVERSITY, et al.,

i Petitioners,

Amy COHEN, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Cireuit

BRIEF OF AMICI CURIAE, HON. J. DENNIS HASTERT

OF ILLINOIS AND OTHER MEMBERS OF CONGRESS

IN SUPPORT OF PETITIONERS

Amici Curiae respectfully pray that this Court grant

review in this case. Amici have obtained consent from all

parties to file this brief. Correspondence evidencing con-

sent has been provided to the Clerk of this Court.

INTEREST OF AMICI CURIAE

The Honorable J. Dennis Hastert and other Members

of Congress have an interest in the issues presented be-

cause, as Members of Congress, their duties include draft-

ing new legislation, amending current legislation and

overseeing the administrative agencies in their interpreta-

tion and execution of legislation.

2

The Amici raise issues of concern to them, which

include the manner in which courts and administrative

agencies interpret legislation. The decision of the Court

of Appeals for the First Circuit, together with decisions

from other Courts and opinions and interpretations from

the Executive Branch demonstrate that there are signifi-

cant unresolved issues regarding the meaning of Title IX

of the Educational Amendments of 1972, 20 U.S.C.

§§ 1681-1688 (“Title IX”) and the amount of deference

which should be paid to administrative agencies in the

interpretation of that statute.

The Petition raises issues under the Constitution which

have been left unresolved by this Court and which could

be resolved here. The unresolved issues have resulted in

Significant differences of opinion. Resolution of those un-

resolved issues would clarify the parameters of constitu-

tional prohibitions for both Congress and the Executive.

This Court could resolve the case by deciding any one

of the questions presented here. By doing so, this Court

would resolve issues that affect Congress in both its a

lative function and in its oversight function.

STATEMENT OF THE CASE

The instant case is about far more than whether Brown

University may eliminate women’s intercollegiate gymnas-

tics and volleyball teams. This case raises several issues

of national importance.

The case is about the meaning of an Act of Congress

affecting all colleges and universities in this country. At

issue is whether an interpretation of that Act made by an

administrative agency can be sustained as a matter of

statutory construction and constitutional civil rights. The

case also presents the issue of the appropriate level of def-

erence to be given to an administrative interpretation, and

the appropriate reading of that interpretation.

3

SUMMARY OF ARGUMENT

At issue in this case is the appropriate construction of

Title IX. Brown University is alleged to have violated the

Act and discriminated against women in the conduct of

its intercollegiate athletic program because the proportion

of women to men participating in intercollegiate athletics

is not the same as the proportion of women to men in the

undergraduate population. Brown has defended on the

grounds that the proportion of women to men who are par-

ticipating is consistent with the proportion of women to

men who are interested in participating.

The so-called “proportionality” rule that uses the under-

graduate population as the standard arises from a Policy

Interpretation promulgated by the Office for Civil Rights

of the Department of Education. The “proportionality”

Standard contained therein is used as a “safe-harbor.” In

other words, the Office for Civil Rights states that it will

not prosecute an institution if it has met the “proportional-

ity” standard.

Several Circuit Courts, including the First Circuit in

the Cohen decision, have considered the issue and have

given the “proportionality” rule the force of a regulation as

if it had been promulgated by the Agency as an interpre-

tation and an affirmative requirement of Title IX. One

District Judge, Judge Doherty in Pederson v. Louisiana

State University, 912 F.Supp. 892 (M.D.La. 1996), to-

gether with the dissenting Judge in the Cohen decision,

Chief Judge Torruella, have criticized the “proportionality”

standard.

The case, if heard by this Court, would permit the

Court to consider and pass on many issues that bear di-

rectly on the authority of Congress and the Executive in

the areas of affirmative action, agency authority and stat-

utory construction.

These Amici request that this Court grant the Petition

and consider the issues presented. In so doing, these

4

Amici request that this Court resolve certain questions re-

garding statutory construction, the appropriate deference

to be given to an administrative enforcement policy and

constitutional issues left open by recent decisions relating

to discrimination and affirmative action.

REASONS FOR GRANTING THE WRIT

The Petitioner’s Petition for Certiorari presents an op-

portunity for this Court to resolve important issues re-

garding the construction of Title IX of the Educational

Amendments of 1972, the process of statutory construc-

tion, and the deference to be paid to an administrative

agency’s enforcement policies. The Petition also presents

constitutional issues regarding affirmative action plans left

unresolved by this Court’s decision in Adarand Construc-

tors v. Pena, US. , 115 S.Ct. 2097 (1995).

These Amici make no argument as to the merits of the

case. Rather, they ask that this Court grant the Petition

for the purpose of resolving issues that affect not only

Congress and the Executive, but also the operation of vir-

tually all of the colleges and umiversities in this country

and the lives of many student-athletes affected by the in-

terpretation placed on Title IX.

The issues addressed by the Petition are important to

Congress because they affect not only the ability of Con-

gress to legislate in important spheres but also the author-

ity of administrative agencies to act under a delegation of

power. Therefore, as members of Congress, the Amici

here ask that this Court grant the Petition for Certiorari.

The history of Title EX and the promulgation of the

regulations has already been recounted in the published

decisions. The issues here, however, do not arise out of

the statute or the regulations, but out of the Policy Inter-

pretation. It is that Policy Interpretation that provides

the basis of the claim below that the Act requires a policy

of “proportionality.” See 44 Fed. Reg. 71,418 (1979).

|

5

Brown University challenges the validity of the Policy

Interpretation. The Plaintiffs assert that it is a valid ex-

ercise of administrative interpretation.

These Amici request that this Court review the matter _

because, no matter which way this Court rules, the under-

lying issues are important to Congress. While these issues

remain unresolved, colleges and universities across the

country feel compelled to take actions they might not

otherwise take.

These Amici are painfully aware that the actions taken

by college administrators have a very human cost. As

colleges seek to respond to federal regulators and threats

of private-party lawsuits, they restrict participation in

some athletic programs by setting a limit on the number

of student-athletes who can participate. In addition, they

feel compelled to eliminate other athletic programs. Each

program capped or eliminated represents lost opportunities

for student-athletes. While the issues presented here re-

main unresolved, the cost in terms of lost opportunities

will continue. Regardless of the specific obligations that

may or may not be imposed on educationa! institutions in

meeting the objectives of the statute, the intent of Title

IX was not to restrict opportunities for any group of stu-

dent-athletes. The current uncertainty as to interpretation,

however, produces that very effect.

By resolving the issues presented, this Court can miti-

gate the human cost and permit colleges to administer

their athletic programs for the benefit of athletes, not law-

yers and regulators.

6

I. BY GRANTING THE PETITIONER’S PETITION

THIS COURT CAN RESOLVE ISSUES INVOLVING

THE CONSTRUCTION OF TITLE IX AND THE

DEFERENCE TO BE GIVEN AN AGENCY’S POL-

ICY INTERPRETATION.

At issue is a matter of statutory construction. Was

it the intent of Congress to impose a rule under which a

lack of “proportionality” constitutes discrimination in

inter-collegiate athletics?

Leaving aside the issue of whether such a rule would be

constitutionally permissible, various lower courts have de-

termined that that was precisely the intent of Congress. As

evidence of that intent, the lower courts have looked not

to the language of the Act, not to statements of Members

of Congress, not to fully promulgated regulations of the

Department of Education, but to an interpretive policy

used for enforcement purposes by the Office for Civil

Rights to the effect that if a college maintains “propor-

tionality” it will not be charged with discrimination. Some

lower courts have stated that such a policy of an adminis-

trative agency charged with enforcement of the Act is en-

titled to deference as to the meaning of the Act and as to

the intent of Congress. See Cohen v. Brown University,

991 F.2d 888, 896-97 (ist Cir. 1993) ¢Cohen II), Cohen

v. Brown University, 101 F.3d 155, 173 (1st Cir. 1996)

(Cohen III), Kelly v. Board of Trustees, 35 F.3d 265

(7th Cir. 1995) cert. denied, 115 S.Ct. 938 (1995). At

least one other court has held the policy is not entitled to

deference in determining the intent of Congress. Pederson

v. Louisiana State University, 912 F.Supp. 892, 914

(M.D.La. 1996).

These Amici request that this Court grant the Petition-

er’s Petition in order to review that analysis. Whether the

power of determining Congressional intent should be held

by enforcement officers in the various agencies and de-

partments of the Executive Branch is a significant statutory

construction issue.

7

A. Whether an Enforcement Policy Is Entitled to the

Same Deference as a Regulation.

In the case below, the First Circuit held that the Policy

Interpretation is entitled to deference because it was issued

by the agency that issued the regulations, which regulations

were issued pursuant to the Administrative Procedure Act.

The Interpretation was, therefore, given deference as an

indication of the intent of the Agency in issuing its regu-

lations, which regulations were given deference as an

indication of Congressional intent.

The question of whether an enforcement policy of an

administrative agency should be given deference in deter-

mining the intent of Congress has come up before in

different contexts. In Batterton v. Francis, 432 U.S. 416,

425 n.9 (1977), this Court pointed out the difference

between the weight to be given to substantive regulations

and the weight to be given to policy interpretation in

determining the intent of Congress. This Court said:

Legislative, or substantive, regulations are “issued

by an agency pursuant to statutory authority and

which implement the statute, as, for example, the

proxy rules issued by the Securities and Exchange

Commission . . . . Such rules have the force and

effect of law.” U.S. Dept. of Justice, Attorney Gen-

eral’s Manual on the Administrative Procedure Act

30 n.3 (1947). See United States v. Mersky, 361

U.S. 431, 437-438, 80 S.Ct. 459 4 L.Ed.2d 423

(1960); Atchison, T.&S.F.R. Co. v. Scarlett, 30

USS. 471, 474, 57 S.Ct. 541, 81 L.Ed.2d 748 (1937).

By way of contrast, a court is not required to give

effect to an interpretive regulation. Varying degrees

of deference are accorded to administrative interpre-

tations, based on such factors as the timing and con-

sistency of the agency’s position, and the nature of

its expertise. See General Electric Co. v. Gilbert, 429

U.S. 125, 141-145, 97 S.Ct. 401, 50 L.Ed.2d 343

(1976); Morton v. Ruiz, 415 U.S. 199, 231-237,

94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); Skidmore

v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89

L.Ed. 124 (1944).

In this case, the issue is unresolved as to whether the

Policy Interpretation is an “interpretive regulation” or a

“substantive regulation.” Interpretive regulations, “while

not controlling upon the courts by reason of their author-

ity, do constitute a body of experience and informed

judgment to which courts and litigants may properly

resort for guidance.” Skidmore v. Swift & Co., 323 US.

at 140. However, “[t]he weight of such a judgment in

a particular. case will depend upon the thoroughness of

evidence in its consideration, the validity of its reasoning,

its consistency with earlier and later pronouncements, and

all those factors which give it power to persuade, if lack-

ing power to control.” Jd. In Skidmore, this Court held

that the regulation was interpretive and rejected the inter-

pretations as being controlling.

B. Whether a “Safe Harbor” Regulation Should Be

Interpreted as Creating an Affirmative Obligation.

Here, the interpretation at issue is, apparently, an

exercise of prosecutorial discretion. The Department is

exercising its discretion not to prosecute those institutions

that lie within the “safe harbor” of prongs one, two or

three. Prosecutorial discretion is an important function

of the Executive in our system of separation of powers.

Whether such a Policy Interpretation can create sub-

stantive rights against all parties not inside the “safe

harbor” is an issue important to these Amici. In other

words, if an agency develops a “safe harbor” is everyone

required to sail into it? If someone does not take advan-

tage of it is there a violation of the law?

The issue impacts other cases involving “safe harbor”

regulation. Here the “safe harbor” creates a shield. Its

purpose was to limit government prosecution to those

9

institutions outside the shield. If its effect can be to create

substantive rights which may be used by private parties

against all institutions outside the shield, then these Amici

and all of Congress will have to scrutinize “safe harbor”

regulations more closely.

The Policy Interpretation at issue here provides three

“safe harbors” which colleges can use to stay “on tho

sunny side of Title [X.” See Brown II. The “safe har-

bors” are a shield for colleges. Here, the failure to find a

“safe harbor” has been used as a sword by the plaintiffs.

These Amici request review of this matter to determine

whether a “safe harbor” creates affirmative obligations.

If, as a matter of construction of the regulations and the

underlying legislation, “safe harbors” create affirmative

obligations, then these Amici, and Congress as a whole,

would be obliged to carefully scrutinize and oversee other

regulatory actions in which “safe harbors” have been

created. Such “safe harbors” are common in the enforce-

ment of the Securities Acts, the Internal Revenue Code

and the Antitrust Laws. Congressional oversight would

have to be enhanced if those “safe harbors” were to create

private, substantive, affirmative rights, swords, as well as

shields from government prosecution. In fact, Congress

may be reluctant to delegate authority to create “safe

harbors”.

C. Whether an Agency Interpretation Creating Gen-

der-Based Classifications Is Entitled to Deference.

The Circuit Courts have given deference to the Policy

Interpretation even though it creates gender-based classi-

fications. However, in United States v. Commonwealth of

Virginia, U.S. ——, 116 S.Ct. 2264 (1996), this

Court held that a state agency’s creation of gender-based

classifications was not entitled to deference. The unre-

“solved issue is whether Commonwealth of Virginia means

that no deference is to be given to an agency’s creation

10

of a classification, or whether there is to be a different

standard for federal agencies than there is for state

agencies.

The Executive Branch is, apparently, equally perplexed

about the deference to be given to Congress. The De-

partment of Justice Office of Legal Counsel stated that

one of the issues left unresolved after this Court’s decision

in Adarand was “what deference the judiciary should give

to determinations by Congress that affirmative action is

necessary to remedy discrimination.” Legal Guidance on

the Implications of the Supreme Court’s Decision in

Adarand Constructors, Inc., 19 U.S. Op. OLC .

1995 Westlaw 835775 (June 28, 1995).

Resolution of these issues will impact Congress’ ability

to legislate and its decisions to delegate authority to fed-

eral agencies as well as the level of supervision and over-

sight required by Congress.

II. BY GRANTING THE PETITION THIS COURT CAN

RESOLVE THE ISSUE OF WHETHER TITLE IX

IS TO BE CONSTRUED AS ANALOGOUS TO THE

CASES ARISING UNDER TITLE VII OF THE

CIVIL RIGHTS ACT OF 1964.

Several Circuit Courts have decided cases under Title

IX of the Educational Amendments Act. Although the

Act itself is facially similar to Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the

issue Of whether to apply the| reasoning and the case law

that arose under Title VII to cases arising under Title

[X remains unresolved in non-employment cases. The ques-

tion was left open by this Court in Franklin v. Gwinnett

County Public School, 503 U.S. 60, 65 n.4 (1992).

In 1993, the Tenth Circuit held that Title VII case law

under the theory of unintentional discrimination, or “dis-

parate impact”, provides the most “appropriate analogue”

for cases arising under Title IX. Roberts v. Colorado

ii

State Board of Agriculture, 998 F.2d 824, 832-833

(1993). In 1994 the Second Circuit held that Title VII

precedent was generally applicable. Yusif v. Vassar Col-

lege, 35 F.3d 709, 714-715. Other Circuits dealing with

similar issues under Title IX did not speak to the issue

of the application of Title VII analysis. See, Favia v.

Indiana University of Pennsylvania, 7 F.3d 332 (3d Cir.,

1993), Kelley v. Board of Trustees, 35 F.3d 265 (7th

Cir. 1994), cert. denied, 115 S.Ct. 938 (1995).

However, in the decision below the First Circuit re-

jected the analogy to Title VII cases. The First Circuit

stated:

It does not follow from the fact that 1681(b) was

patterned after a Title VII provision that Title VII

standards should apply to a Title IX analysis of

whether an intercollegiate athletics program equally

accommodates both genders .... 101 F.3d at

154-155.

Thus, the First Circuit below accepted the rationale of

Roberts, permitting a claim for unintentional discrimi-

nation, but rejecting the safeguards built up by Title VII

for unintentional discrimination.

Title VII provides a wealth of case law from this Court

and the lower courts regarding what is necessary to prove

a claim of intentional and unintentional discrimination.

Case law under Title VII provides the elements of a

prima facie case, McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); provides the elements of a case of dis-

parate impact, Griggs v. Duke Power Co., 401 U.S. 414

(1971); provides guidelines for the use of statistical evi-

dence, Hazelwood School Dist. v. U.S., 433 US. 299

(1977); provides the basis for employer defenses, Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989); and the

bases for disproving such defenses as pretexts, St. Mary’s

Honor Center v. Hicks, 509 U.S. , 113 S.Ct. 2742

12

(1993); provides the analysis for determining who has

the burden of going forward with the evidence and the

burden of persuasion, Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248 (1981); and even provides when

a remedial affirmative action plan may be permissible in

gender and race-related cases, United Steelworkers v.

Weber, 443 U.S. 193 (1979) and Johnson v. Transpor-

tation Agency, Santa Clara County, 480 U.S. 616, 638-40

(1987).

These Amici, as members of Congress, look to judicial

construction of similar statutes when enacting subsequent

legislation. Congress considers a well-developed body of

caselaw as an indication of how courts will act in the

future. Here, some lower courts have rejected well-

developed analysis where the underlying statutes are vir-

tually identical. Some have incorporated the analysis. As

a result, these Amici request that this Court grant the

Petitioner’s Petition in order to resolve the issue of the

applicability of the case-law under Title VII.

Ill. BY GRANTING THE PETITION THIS COURT CAN

CLARIFY WHETHER PROPORTIONALITY IS A

GENDER-BASED CLASSIFICATION.

Following this Court’s holding in Adarand several ques-

tions remain unresolved. The question arises in this case

in the context of whether the “proportionality” standard

constitutes a preference.

The First Circuit ruled below that it is not a preference

but a remedy. The Seventh Circuit, in Kelley, ruled that the

“proportionality” standard creates a “gender-based classi-

fication system” that “passes constitutional muster because

it directly protects the interest of the disproportionately

burdened gender ... .” 35 F.3d at 272. The court held

that “proportionality” created a preference but the pref-

erence was justified. The District Court for the Middle

District of Louisiana stated that the Act itself prohibits

13

“preferential or disparate treatment” and that the “propor-

tionality” standard therefore violates the clear meaning of

the Act. Pederson v. Louisiana State University, 912 F.

Supp. at 914 (1966).

The Department of Education has taken the position

that the standard does not create a gender-based classifi-

cation because the Policy Interpretation provides means

other than “proportionality” to meet its test. (Clarification

of Intercollegiate Athletics Policy Guidance, Department

of Education, Office for Civil Rights, (1995)). The dis-

senting opinion in the Cohen decision below, however,

would find that the so-called second and third prongs

are either illusory or exacerbate the effect of the first

prong. Cohen IIT, 101 F.3d at 195-97.

The terms “preference” or quota” have become shib-

boleths in both public and legal discourse. Even the

First Circuit below termed Brown University’s argument

that “proportionality” was an affirmative action program a

“talismanic incantation.” 101 F.3d at 170.

In the decision below, the First Circuit held that the

“proportionality” standard is not an affirmative action

plan, a preference or a quota because it is not a voluntary

plan adopted “to remedy discrimination . . . by means

of specific group-based preference or numerical goals, and

a specific timetable for achieving those goals.” 101 F.3d

at 170. (citing Adarand) Rather, the First Circuit held

that Title IX is an anti-discrimination statute. The court

then likened its enforcement of “proportionality” to school

desegregation cases where discrimination had been proved.

The court ruled that because Brown had not met the “pro-

portionality” standard in the first place, it was guilty of

discrimination, without more. Since discrimination had

been proved, the First Circuit reasoned that Adarand

did not apply. 101 F.3d at 170-171. The dissent ar-

gues that the “proportionality” standard does, in fact,

create a preference.

14

These Amici do not comment on whether the First

Circuit’s reasoning is circular and do not argue that the

analysis of the dissenting Judge is meritorious. Rather,

these Amici request that this Court grant the petition to

consider whether the “proportionality” standard is a pref-

erence, or whether a failure to achieve “proportionality”

is, itself, proof of discrimination.

Deciding this case will help give life to the almost

meaningless terms “preference” or “quota”, and will help

define the parameters of coverage of Adarand and City of

Richmond vy. J. A. Croson Co., 488 U.S. 469 (1989).

Both Congress and the Executive will more readily be

able to determine whether and to what extent their actions

will be held to be unlawful preferences or merely remedial

determinations based on specific findings. The Amici,

therefore, urge this Court to grant this petition in order

to resolve basic issues regarding what is a preference or

set-aside program and what is a remedial decree based on

findings of discrimination.

IV. BY GRANTING THE PETITION, THIS COURT CAN

RESOLVE WHAT REQUIREMENTS APPLY TO

GENDER-BASED CLASSIFICATIONS IN LIGHT

OF COMMONWEALTH OF VIRGINIA.

This Court’s decision in Adarand resolved several is-

sues regarding race-based affirmative action programs.

The issue of whether and to what extent Adarand applies

to gender-based classifications was left open. Subsequent-

ly, in Commonwealth of Virginia, this Court required that

gender-based classifications must have an “exceedingly

persuasive justification.” 518 US. , 116 S.Ct. 2264,

2275-2276 (1996). Both issues could be resolved by this

Court by granting the Petitioner’s Petition for Certiorari

here.

The lower courts have struggled with the issue of

whether Adarand should apply to gender-based affirmative

action plans. The Sixth Circuit has held that gender-based

ee

affirmative action programs are to be analyzed in the

Same manner as race-based programs. Conlin v. Blanch-

ard, 890 F.2d 811, 816 (6th Cir. 1989); see also, Brunet

v. City of Columbus, 1 F.3d 390, 404 (6th Cir. 1993),

cert. denied, 114 S.Ct. 1190 (1994). Other Circuits have

held otherwise. See, e.g., Ensley Brancy, NAACP v. Sei-

bels, 31 F.3d 1548, 1580 (11th Cir. 1994). In the case

below, the First Circuit held that the focus on “exceed-

ingly persuasive justification” in Commonwealth of Vir-

ginia did not change the standard used to evaluate gender-

based classifications for the past 20 years.

The confusion does not end with the lower courts. The |

Justice Department’s Office of Legal Counsel does not |

necessarily see eye-to-eye with the Department’s own So-

licitor General. On June 28, 1995, the Attorney General

issued an opinion that Adarand had no effect on gender-

based affirmative action programs. The OLC stated:

Adarand did not address the appropriate constitu-

tional standard of review for affirmative action pro-

grams that use gender classification as a basis for

decision making. Indeed, the Supreme Court has

never resolved the matter. However, both before

and after Croson, nearly all circuit court decisions

have applied intermediate scrutiny to affirmative

action measures that benefit women. The Sixth Cir-

cuit is the only court that has equated racial and

gender classifications: purporting to rely on Croson,

it held that gender-based affirmative action measures

are subject to strict scrutiny. Conlin v. Blanchard,

890 F.2d at 816. That holding has been criticized by

other courts of appeals, which have correctly pointed

out that Croson does not speak to the appropriate

standard of review for such measures. Legal Guid-

ance on the Implications of the Supreme Court’s

Decision in Adarand Constructors, Inc. v. Pena,

U.S. Department of Justice, Office of Legal Counsel,

supra.

The position of the Attorney General is that gender-

based classification programs could continue in spite of

16

Adarand. However, the opinion of the Attorney General

is not universally held. Even the Attorney General has

argued that official discrimination based on gender should

be scrutinized in the same light as discrimination based

on race. Brief of United States in Commonwealth of Vir-

ginia. If race and gender discrimination are to be subject

to the same level of scrutiny, then the rationale for refus-

ing to apply Adarand to gender-based affirmative action

plans is lost.

The issue of the level of scrutiny to be applied in gen-

der discrimination cases under the Fourteenth Amendment

compared with the level of scrutiny to be applied in the

so-called benign discrimination setting of affirmative ac-

tion plans based on gender has been left open to interpre-

tation by lower courts aad commentators. The Seventh

Circuit has noted the anomaly that would exist by judging

a gender-based affirmative action program by a less severe

standard than a race-based program since the race-based

program is designed to cure the more invidious discrimi-

nation. Milwaukee County Pavers Ass’n v. Fiedler, 922

F.2d 419, 422 (7th Cir. 1991).7 The same anomaly has

also been the subject of commentators for many years.

See, e.g., Ginsburg, Sexual Equality under the Fourteenth

and Equal Rights Amendments, 1979 Washington U.L.Q.

161, 170.?

1 Milwaukee County Pavers is a post-Croson decision. There

Judge Posner raised the anomaly but did not rule on it because

the State of Wisconsin waived the argument by conceding that

Croson applied to gender-based affirmative action programs.

2 In discussing questions left unresolved by Justice Powell’s opin-

ion in Regents of the University of California v. Bakke (488 U.S.

265 (1978)) Professor Ginsburg asks:

Did Justice Powell mean law-sanctioned preferential treatment

for women should be less vulnerable to challenge than prefer-

ential treatment for racial and ethnic groups saddled with “a

lengthy and tragic history” of adverse discrimination?

Professor Ginsburg answers: “That seems an anomalous position.”

17

Congress needs guidance on this issue so that it knows

what action it can take regarding gender-based classifica-

tions. Granting the Petitioner’s Petition here will give this

court the opportunity to clarify its holding in Adarand

and to give meaning to the language in Commonwealth of

Virginia requiring an “exceedingly persuasive justifica-

tion” for parties seeking to defend a gender-conscious ex-

ercise of government authority. Granting this Petition

will help guide Congress and the lower courts in an area

of constitutional interpretation, subject to debate within

the other two branches of government, and, apparently,

within the Executive Branch itself.

CONCLUSION

For the foregoing reasons, the Amici Curiae respect-

fully request that the Court grant certiorari in this case.

Respectfully submitted,

Of Counsel: DANIEL V. KINSELLA *

DALE ANDERSON DONALD W. ANDERSON

8675 Birchpond Road Suebirr & RADsIvs,

Eagan, MN 55122 CHARTERED

(612) 456-9239 333 West Wacker Drive

Suite 2600

CHARLES D. VOGEL Chicago, IL 60606

24 Harbor Pointe Circle (312) 781-6633

Bloomington, IL 61704

(309) 662-0608 * Counsel of Record