Denied by the US Supreme Court on April 21, 1997

(The first part is what I sent email to Congressmen along with the brief.)

IMPORTANT
Here is a draft of the Amicus Brief which Congressman Hastert is intending to
file with the Supreme Court as an amicus in the Brown case.

Please call Congressman Hastert's office (225-2976) and tell him or his staff
person, Tom Brierton, that you would like to be included on the brief. 

The brief does not ask the court to abolish proportionality. It simply asks
the Supreme Court to determine whether proportionality is constitutional.
Proportionality is the rule created by the Department of education that
gender athletic participation ratios must mirror gender enrollment ratios. In
simpler terms since females constitute about 53% of the college students
right now, about 53% of the college athletes must be females.

Thank you for you consideration.

Dale Anderson

________________________________________________________________________

DRAFT AMICUS BRIEF FOR MEMBERS OF CONGRESS
MARCH 15, 1997
DANIEL V. KINSELLA

The Petitioner's Petition for Certiorari presents an opportunity for this Court to resolve important issues regarding the construction of Title IX of the Educational Amendments Act of 1972, the process of statutory construction, 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 Constructors v. Pena, 115 S.Ct. 2097, 132 L.Ed.2d 158 (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 virtually all of the colleges and universities in this country and the lives of many student-athletes affected by the interpretation placed on Title IX.

The issues addressed by the Petition are important to Congress because they affect not only the ability of Congress to legislate in important spheres but also the authority 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.

I. REASONS FOR GRANTING THE WRIT

The history of Title IX 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 Interpretation. 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).

Brown University challenges the validity of the Policy Interpretation. The Plaintiffs assert that it is a valid exercise of administrative interpretation.

These Amici request that this Court review the matter because, no matter which way this Court rules, the underlying 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 remain unresolved, the cost in terms of lost opportunities will continue.

Whichever way this Court rules, the intent of Title IX was not to restrict opportunities for any group of student-athletes. The current uncertainty as to interpretation, however, has that very effect.

By resolving these issues this Court can mitigate the human cost and permit colleges to administer their athletic programs for the benefit of athletes, not lawyers and regulators.

II. 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 POLICY INTERPRETATION.

At issue in this 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 determined 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 enforcement manual of the Office for Civil Rights to the effect that if a college maintains "proportionality" it will not charged with discrimination. Some lower courts have stated that such a policy of the administrative agency charged with enforcement of the Act is entitled 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 (1st Cir. 1993) (Cohen II), Cohen v. Brown University, 101 F.3d. 155, 173 (1st Cir. 1996) (Cohen III), Kelley 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 Petitioner'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 departments of the executive branch, is a significant issue in the area of statutory construction.

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 regulations, which regulations were given deference an indication of Congressional intent.

The question of whether an enforcement manual of an administrative agency should be given deference in determining the intent of Congress has come up before in different contexts.

In Batterton v. Francis, 432 U.S. 416, 425 n.9, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977), this Court pointed out the difference between the weight to be given to substantive regulations and the weight to be given to policy interpretations 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 General'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, 300 U.S. 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 interpretations, based on such factors as the timing and consistency 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 authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. at 140. However, "[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident 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 lacking power to control." Id.

In Skidmore, this Court held that the regulation was interpretive and rejected the interpretation 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 an Policy Interpretation can create substantive 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 advantage 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 institutions outside the shield. If its effect, however, 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 the sunny side of Title IX." See Brown II. The safe harbors 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 enforcement 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 GENDER-BASED CLASSIFICATIONS IS ENTITLED TO DEFERENCE. The Circuit Courts have given deference to the Policy Interpretation even though it creates gender-based classifications. 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 unresolved issue is whether Commonwealth of Virginia means that no deference is to be given to an agency's creation 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 Department 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 federal agencies as well as the level of supervision and oversight required by Congress.

III. 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, lower courts differ on the issue of whether or not to apply the reasoning and the case law that arose under Title VII to cases arising under Title IX.

In 1993 the Tenth Circuit held that Title VII case law under the theory of unintentional discrimination, "disparate impact cases", provides the most "appropriate analogue" for cases arising under Title IX. Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832-833 (1993). 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 rejected 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 discrimination but rejected the safeguards built up by Title VII for unintentional discrimination, or, disparate impact, analysis.

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 disparate impact, (Griggs v. Duke Power Co., 401 U.S. 424 (1971)); provides guidelines for the use of statistical evidence, (Hazelwood School Dist. v. U.S., 433 U.S. 299 (1977)); provides the basis of affirmative defenses, (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)), and the bases for disproving such affirmative defenses as pretexts, (St. Mary's Honor Center v. Hicks, 509 U.S. , 113 S.Ct. 2742 (1993)); provides the analysis for determining who has the burden of going forward with the evidence and the burden of persuasion, (Texas Department 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. Transportation 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 case-law 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 virtually identical. 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.

IV. BY GRANTING THE PETITION THIS COURT CAN CLARIFY WHETHER PROPORTIONALITY IS A GENDER-BASED CLASSIFICATION.

Following this Court's holding in Adarand several questions remain unresolved regarding what constitutes a "preference." The question arises in this case in the context of whether the "proportionality" standard constitutes a preference.

The First Circuit ruled that it is not a preference but a remedy. The Seventh Circuit, in Kelley, ruled that the "proportionality" standard creates a "gender-based classification 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 preference was justified. The District Court for the Middle District of Louisiana stated that the Act itself prohibits "preferential or disparate treatment" and that the "proportionality" standard therefore violates the clear meaning of the Act. Pederson v. Louisiana State University, 912 F.Supp. at 914 (1996)

The Department of Education has taken the position that the standard does not create a gender-based classification 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 dissenting 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 III, 101 F.3d. at 195-97.

The resolution of this issue will affect more than the sphere of intercollegiate athletics. The terms "preference" or "quota" have become shibboleths 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 preferences 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 proportionality 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 argues that the "proportionality" standard does, in fact, create a preference.

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 a proportionality standard is a preference subject to the requirements of Adarand, or whether a failure to achieve proportionality is proof of discrimination to which the Adarand preference requirements do not apply.

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 Croson. 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 or a remedial decree based on findings of discrimination.

V. 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 issues regarding race-based "affirmative action" or "benign discrimination" programs. The issue of whether and to what extent Adarand applies to gender-based classifications was left open. 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 affirmative action programs are to be analyzed in the same manner as race-based programs. Conlin v. Blanchard, 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 Branch, NAACP v. Seibels, 31 F.3d 1548, 1580 (11th Cir. 1994) In the case below, the First Circuit held that the focus on "exceedingly persuasive justification" in Commonwealth of Virginia 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 Solicitor General. On June 28, 1995 the Attorney General issued an opinion that Adarand had no effect on gender-based affirmative action programs.

Adarand did not address the appropriate constitutional standard of review for affirmative action programs that use gender classifications as a basis for decisionmaking. 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 Circuit 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. 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 Guidance on the Implications of the Supreme Court's Decision in Adarand Constructors, Inc. Pena, U.S. Department of Justice, Office of Legal Counsel.

The position of the Attorney General is that gender-based classification programs could continue in spite of 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 Virginia. If race and gender discrimination are to be subject to the same level of scrutiny, then the rationale for refusing to apply Adarand to gender-based affirmative action plans is lost.

The issue of the level of scrutiny to be applied in gender discrimination cases under the Fourteenth Amendment compared with the level of scrutiny to be applied in the so-called benign discrimination setting of affirmative action plans based on gender has been left unresolved and left open to interpretation by lower courts and commentators. The Seventh Circuit has noted the anomaly that would exist by judging a gender-based affirmative action program by less severe standard than a race-based program since the race-based program is designed to cure the more invidious discrimination. Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 422 (7th Cir, 1991) 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.

Congress needs guidance on this issue so that it knows what actions it can take regarding gender-based classifications. 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 justification" for parties seeking to defend a gender-conscious exercise 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.