# Amicus Curiae Brief — Brown University v. Cohen

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0293%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1186

## Text

Supreme Cova
= FP Eid

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0293%3A07. Public record. Not legal advice.