Cohen v. Brown University ( 1996 )


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    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
    __________________

    No. 95-2205

    AMY COHEN, ET AL.,
    Plaintiffs - Appellees,

    v.

    BROWN UNIVERSITY,
    Defendants - Appellants.

    __________________


    ERRATA SHEET

    The opinion of this Court issued on November 21, 1996, is
    amended as follows:

    On page 9, line 15, replace "women. Id. at 981." with ___
    "women, id. at 981.". ___

    On page 10, line 18, delete extra space between "sports" and
    "--".

    On page 11, line 9, delete "id.,". ___

    On page 11, line 12, delete "totals," id." and replace with ___
    "totals." Id.". ___

    On page 11, line 16, delete "id.,". ___

    On page 15, line 36, delete "then" and replace with
    "former".

    On page 24, line 13, insert comma after "and".

    On page 26, line 14, delete "mere" and replace with "bare".

    On page 38, line 17, insert "for women" between "treatment"
    and "by".

    On page 42, line 18, replace "to women" with "for women".

    On page 43, line 8, delete "Cf." and replace it with "See". ___ ___

    On page 47, line 7, delete "athletics" before
    "opportunities".

    On page 55, lines 9 and 10, delete "in varsity competition,"
    and replace it with "at the varsity level,".












    On page 59, line 19, delete "(1989)".

    On page 62, line 5, delete "(1973)".

    On page 62, line 6, delete "(1989)".

    On page 64, lines 28 and 29, replace "is merely" with "is,
    in effect,".

    On page 65, line 21, insert "as it applies to athletics"
    between "Title IX" and "is".

    On page 68, line 2, insert a new paragraph beginning with
    "Brown first contends".

    On page 68, line 9, insert a new paragraph beginning with
    "Brown also suggests".

    On page 79, line 22, replace "Court" with "court".

    On page 80, lines 3 and 6, replace "Court" with "court".

    On page 86, lines 5 and 13, replace "Court" with "court".

    On page 88, line 22, cite to the C.F.R. should be: "34
    C.F.R. 106.41(b) (1995)".

    On page 89, replace text on line 1 with: "one sex, however,
    and where "athletic opportunities for members of that sex have
    previously been limited, members of the excluded sex must be
    allowed to".

    On page 89, lines 11-15: Delete two sentences: "When the
    university chooses a non-contact sport, 34 C.F.R. 106.41(b)
    requires that the school sponsors one team for each gender, or
    allow both sexes to try-out. If the university chooses a contact
    sport, however, try-outs can be restricted to one sex.".

    On page 89, line 17, delete "hockey".

    On page 95, last line, delete comma after "the
    interpretation chosen".

    On page 96, line 10, replace "Appellees" with "appellees".

    On page 98, line 17, replace "Appellees" with "appellees".

    On page 100, line 19, replace "Appellees" with "appellees".


    On page 101, lines 8 and 11, replace "Appellees" with
    "appellees".

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    On page 103, line 2, replace "Court" with "court".

    On page 104, line 30, replace "female" with "females".

    On page 105, line 18, replace "Court" with "court".
















































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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 95-2205

    AMY COHEN, ET AL.,
    Plaintiffs - Appellees,

    v.

    BROWN UNIVERSITY, ET AL.,
    Defendants - Appellants.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Bownes, Senior Circuit Judge, ____________________
    and Stahl, Circuit Judge. _____________
    _____________________

    Joan A. Lukey and Walter B. Connolly, Jr., with whom Hale ______________ ________________________ ____
    and Dorr, Alison B. Marshall, Miller, Canfield, Paddock & Stone, ________ __________________ _________________________________
    Beverly E. Ledbetter, General Counsel, Brown University, Julius _____________________ ______
    C. Michaelson, Jeffrey S. Michaelson and Michaelson & Michaelson _____________ ______________________ _______________________
    were on brief for appellants.
    Martin Michaelson, with whom Amy Folsom Kett, Suzanne M. __________________ ________________ __________
    Bonnet, Hogan & Hartson L.L.P. and Sheldon E. Steinbach, General ______ ______________________ ____________________
    Counsel, American Council on Education, were on brief for
    American Council on Education, Association of American
    Universities, National Association of Independent Colleges and
    Universities, and National Association of State Universities and
    Land-Grant Colleges, amici curiae.
    George A. Davidson, Carla A. Kerr, Seth D. Rothman and ___________________ ______________ ________________
    Hughes Hubbard & Reed on brief for Baylor University, Boston _______________________
    University, Colgate University, College of the Holy Cross,
    Colorado State University, Fairfield University, George
    Washington University, John Hopkins University, Lafayette
    College, New York University, Saint Peter's College, Southern
    Methodist University, Tulane University, University of Arkansas,
    University of Nebraska, University of Notre Dame, and Wake Forest
    University, amici curiae.
    Melinda Ledden Sidak and Anita K. Blair on brief for The ____________________ _______________
    Independent Women's Forum, amicus curiae.
    Stephen S. Ostrach, Todd S. Brilliant and New England Legal __________________ _________________ _________________

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    Foundation on brief for American Baseball Coaches Association, __________
    College Swim Coaches Association of America, National Wrestling
    Coaching Association and United States Water Polo, amici curiae.
    Lynette Labinger, with whom Roney & Labinger, Amato A. _________________ __________________ _________
    DeLuca, DeLuca & Weizenbaum, Ltd., Raymond Marcaccio, Blish & ______ __________________________ _________________ _______
    Cavanagh, Sandra L. Duggan, Sandra L. Duggan, Esq., P.C., Arthur ________ ________________ ____________________________ ______
    H. Bryant, Leslie A. Brueckner, and Trial Lawyers for Public __________ ____________________ __________________________
    Justice, P.C. were on brief for appellees. _____________
    Deborah L. Brake, with whom Marcia D. Greenberger, Judith C. ________________ _____________________ _________
    Appelbaum and National Women's Law Center were on brief for _________ _____________________________
    National Women's Law Center, American Association of University
    Women/AAUW Legal Advocacy Fund, American Civil Liberties Union
    Women's Rights Project, California Women's Law Center, Center For
    Women Policy Studies, Connecticut Women's Education and Legal
    Fund, Equal Rights Advocates, Feminist Majority Foundation, Girls
    Incorporated, National Association for Girls and Women in Sport,
    National Association for Women in Education, National Coalition
    for Sex Equity in Education, National Commission on Working
    Women, National Council of Administrative Women in Education,
    National Education Association, National Organization for Women
    Foundation, Now Legal Defense and Education Fund, National
    Softball Coaches Association, Northwest Women's Law Center,
    Parents for Title IX, Rhode Island Affiliate American Civil
    Liberties Union, Women Employed, Women's Basketball Coaches
    Association, Women's Law Project, Women's Legal Defense Fund,
    Women's Sports Foundation, and YWCA of the USA, amici curiae.
    Deval L. Patrick, Assistant Attorney General, Isabelle Katz _________________ _____________
    Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey and _______ ________________
    Lisa W. Edwards, Attorneys, Department of Justice, on brief for _______________
    the United States, amicus curiae.


    ____________________

    November 21, 1996
    ____________________

















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    BOWNES, Senior Circuit Judge. This is a class BOWNES, Senior Circuit Judge. _____________________

    action lawsuit charging Brown University, its president, and

    its athletics director (collectively "Brown") with

    discrimination against women in the operation of its

    intercollegiate athletics program, in violation of Title IX

    of the Education Amendments of 1972, 20 U.S.C. 1681-1688

    ("Title IX"), and its implementing regulations, 34 C.F.R.

    106.1-106.71. The plaintiff class comprises all present,

    future, and potential Brown University women students who

    participate, seek to participate, and/or are deterred from

    participating in intercollegiate athletics funded by Brown.

    This suit was initiated in response to the demotion

    in May 1991 of Brown's women's gymnastics and volleyball

    teams from university-funded varsity status to donor-funded

    varsity status. Contemporaneously, Brown demoted two men's

    teams, water polo and golf, from university-funded to donor-

    funded varsity status. As a consequence of these demotions,

    all four teams lost, not only their university funding, but

    most of the support and privileges that accompany university-

    funded varsity status at Brown.

    Prior to the trial on the merits that gave rise to

    this appeal, the district court granted plaintiffs' motion

    for class certification and denied defendants' motion to

    dismiss. Subsequently, after hearing fourteen days of

    testimony, the district court granted plaintiffs' motion for



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    a preliminary injunction, ordering, inter alia, that the _____ ____

    women's gymnastics and volleyball teams be reinstated to

    university-funded varsity status, and prohibiting Brown from

    eliminating or reducing the status or funding of any existing

    women's intercollegiate varsity team until the case was

    resolved on the merits. Cohen v. Brown Univ., 809 F. Supp. _____ ___________

    978, 1001 (D.R.I. 1992) ("Cohen I"). A panel of this court _______

    affirmed the district court's decision granting a preliminary

    injunction to the plaintiffs. Cohen v. Brown Univ., 991 F.2d _____ ___________

    888, 907 (1st Cir. 1993) ("Cohen II"). In so doing, we _________

    upheld the district court's analysis and ruled that an

    institution violates Title IX if it ineffectively

    accommodates its students' interests and abilities in

    athletics under 34 C.F.R. 106.41(c)(1) (1995), regardless

    of its performance with respect to other Title IX areas. Id. ___

    at 897.

    On remand, the district court determined after a

    lengthy bench trial that Brown's intercollegiate athletics

    program violates Title IX and its supporting regulations.

    Cohen v. Brown Univ., 879 F. Supp. 185, 214 (D.R.I. 1995) _____ ____________

    ("Cohen III"). The district court ordered Brown to submit _________

    within 120 days a comprehensive plan for complying with

    Title IX, but stayed that portion of the order pending

    appeal. Id. The district court subsequently issued a ___

    modified order, requiring Brown to submit a compliance plan



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    within 60 days. Modified Order of May 4, 1995. This action

    was taken to ensure that the Order was "final" for purposes

    of this court's jurisdiction, and to expedite the appeal

    process. Id. Finding that Brown's proposed compliance plan ___

    was not comprehensive and that it failed to comply with the

    opinion and order of Cohen III, the district court rejected _________

    the plan and ordered in its place specific relief consistent

    with Brown's stated objectives in formulating the plan.

    Order of August 17, 1995 at 11. The court's remedial order

    required Brown to elevate and maintain at university-funded

    varsity status the women's gymnastics, fencing, skiing, and

    water polo teams. Id. at 12. The district court's decision ___

    to fashion specific relief was made, in part, to avoid

    protracted litigation over the compliance plan and to

    expedite the appeal on the issue of liability. Id. at 11. ___

    The district court entered final judgment on September 1,

    1995, and on September 27, 1995, denied Brown's motion for

    additional findings of fact and to amend the judgment. This

    appeal followed.

    Brown claims error in certain evidentiary rulings

    made during the trial and in the district court's order of

    specific relief in place of Brown's proposed compliance plan.

    In addition, and as in the previous appeal, Brown challenges

    on constitutional and statutory grounds the test employed by

    the district court in determining whether Brown's



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    intercollegiate athletics program complies with Title IX. In

    the first appeal, a panel of this court elucidated the

    applicable legal framework, upholding the substance of the

    district court's interpretation and application of the law in

    granting plaintiffs' motion for a preliminary injunction,1

    and rejecting essentially the same legal arguments Brown

    makes here.

    Brown contends that we are free to disregard the

    prior panel's explication of the law in Cohen II. Brown's _________

    efforts to circumvent the controlling effect of Cohen II are ________

    unavailing, however, because, under the law of the case

    doctrine, we are bound in this appeal, as was the district

    court on remand, by the prior panel's rulings of law. While

    we acknowledge that the law of the case doctrine is subject

    to exceptions, we conclude that none applies here, and that

    the decision rendered by the prior panel in the first appeal

    is not, as Brown claims, "legally defective." Accordingly,

    we decline Brown's invitation to undertake plenary review of

    issues decided in the previous appeal and treat Cohen II as _________

    controlling authority, dispositive of the core issues raised

    here.


    ____________________

    1. The prior panel upheld the district court's rulings in
    all respects save one. We held that the district court erred
    in placing upon Brown the burden of proof under prong three
    of the three-part test used to determine whether an
    intercollegiate athletics program complies with Title IX,
    discussed infra. Cohen II, 991 F.2d at 903. _____ ________

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    We find no error in the district court's factual

    findings or in its interpretation and application of the law

    in determining that Brown violated Title IX in the operation

    of its intercollegiate athletics program. We therefore

    affirm in all respects the district court's analysis and

    rulings on the issue of liability. We do, however, find

    error in the district court's award of specific relief and

    therefore remand the case to the district court for

    reconsideration of the remedy in light of this opinion.

    I. I.

    The relevant facts, legal principles, and

    procedural history of this case have been set forth in

    exhaustive detail in the previous opinions issued in this

    case. Thus, we recite the facts as supportably found by the

    district court in the course of the bench trial on the merits

    in a somewhat abbreviated fashion.

    As a Division I institution within the National

    Collegiate Athletic Association ("NCAA") with respect to all

    sports but football, Brown participates at the highest level

    of NCAA competition.2 Cohen III, 879 F. Supp. at 188. Brown _________

    operates a two-tiered intercollegiate athletics program with

    respect to funding: although Brown provides the financial

    resources required to maintain its university-funded varsity

    ____________________

    2. Brown's football team competes in Division I-AA, the
    second highest level of NCAA competition. Cohen III, 879 F. _________
    Supp. at 188 n.4.

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    teams, donor-funded varsity athletes must themselves raise

    the funds necessary to support their teams through private

    donations. Id. at 189. The district court noted that the ___

    four demoted teams were eligible for NCAA competition,

    provided that they were able to raise the funds necessary to

    maintain a sufficient level of competitiveness, and provided

    that they continued to comply with NCAA requirements. Id. at ___

    189 n.6. The court found, however, that it is difficult for

    donor-funded varsity athletes to maintain a level of

    competitiveness commensurate with their abilities and that

    these athletes operate at a competitive disadvantage in

    comparison to university-funded varsity athletes. Id. at ___

    189. For example, the district court found that some schools

    are reluctant to include donor-funded teams in their varsity

    schedules3 and that donor-funded teams are unable to obtain

    varsity-level coaching, recruits, and funds for travel,

    equipment, and post-season competition. Id. at 189-90. ___

    Brown's decision to demote the women's volleyball

    and gymnastics teams and the men's water polo and golf teams

    from university-funded varsity status was apparently made in

    response to a university-wide cost-cutting directive. Cohen _____

    I, 809 F. Supp. at 981. The district court found that Brown _


    ____________________

    3. Two schools declined to include Brown in future varsity
    schedules when women's volleyball was demoted to donor-funded
    status. Cohen II, 991 F.2d at 892 n.2; Cohen I, 809 F. Supp. ________ _______
    at 993.

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    saved $62,028 by demoting the women's teams and $15,795 by

    demoting the men's teams, but that the demotions "did not

    appreciably affect the athletic participation gender ratio."

    Cohen III at 187 n.2. _________

    Plaintiffs alleged that, at the time of the

    demotions, the men students at Brown already enjoyed the

    benefits of a disproportionately large share of both the

    university resources allocated to athletics and the

    intercollegiate participation opportunities afforded to

    student athletes. Thus, plaintiffs contended, what appeared

    to be the even-handed demotions of two men's and two women's

    teams, in fact, perpetuated Brown's discriminatory treatment

    of women in the administration of its intercollegiate

    athletics program. In the course of the preliminary

    injunction hearing, the district court found that, in the

    academic year 1990-91, Brown funded 31 intercollegiate

    varsity teams, 16 men's teams and 15 women's teams, Cohen I, _______

    809 F. Supp. at 980, and that, of the 894 undergraduate

    students competing on these teams, 63.3% (566) were men and

    36.7% (328) were women, id. at 981. During the same academic ___

    year, Brown's undergraduate enrollment comprised 52.4%

    (2,951) men and 47.6% (2,683) women. Id. The district court ___

    also summarized the history of athletics at Brown, finding,

    inter alia, that, while nearly all of the men's varsity teams _____ ____

    were established before 1927, virtually all of the women's



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    varsity teams were created between 1971 and 1977, after

    Brown's merger with Pembroke College. Id. The only women's ___

    varsity team created after this period was winter track, in

    1982. Id. ___

    In the course of the trial on the merits, the

    district court found that, in 1993-94, there were 897

    students participating in intercollegiate varsity athletics,

    of which 61.87% (555) were men and 38.13% (342) were women.

    Cohen III, 879 F. Supp. at 192. During the same period, __________

    Brown's undergraduate enrollment comprised 5,722 students, of

    which 48.86% (2,796) were men and 51.14% (2,926) were women.

    Id. The district court found that, in 1993-94, Brown's ___

    intercollegiate athletics program consisted of 32 teams, 16

    men's teams and 16 women's teams. Id. Of the university- ___

    funded teams, 12 were men's teams and 13 were women's teams;

    of the donor-funded teams, three were women's teams and four

    were men's teams. Id. At the time of trial, Brown offered ___

    479 university-funded varsity positions for men, as compared

    to 312 for women; and 76 donor-funded varsity positions for

    men, as compared to 30 for women. Id. at 211. In 1993-94, ___

    then, Brown's varsity program -- including both university-

    and donor-funded sports -- afforded over 200 more positions

    for men than for women. Id. at 192. Accordingly, the ___

    district court found that Brown maintained a 13.01% disparity

    between female participation in intercollegiate athletics and



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    female student enrollment, id. at 211, and that "[a]lthough ___

    the number of varsity sports offered to men and women are

    equal, the selection of sports offered to each gender

    generates far more individual positions for male athletes

    than for female athletes," id. at 189. ___

    In computing these figures, the district court

    counted as participants in intercollegiate athletics for

    purposes of Title IX analysis those athletes who were members

    of varsity teams for the majority of the last complete

    season. Id. at 192. Brown argued at trial that "there is no ___

    consistent measure of actual participation rates because team

    size varies throughout the athletic season," and that "there

    is no consistent measure of actual participation rates

    because there are alternative definitions of 'participant'

    that yield very different participation totals." Id. ___

    Reasoning that "[w]here both the athlete and coach determine

    that there is a place on the team for a student, it is not

    for this Court to second-guess their judgment and impose its

    own, or anyone else's, definition of a valuable or genuine

    varsity experience," the district court concluded that

    "[e]very varsity team member is therefore a varsity

    'participant.'" Id. (original emphasis omitted). Thus, the ___

    district court held that

    the "participation opportunities" offered
    by an institution are measured by
    counting the actual participants on ______ ____________
    intercollegiate teams. The number of


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    participants in Brown's varsity athletic
    program accurately reflects the number of
    participation opportunities Brown offers
    because the University, through its
    practices "predetermines" the number of
    athletic positions available to each
    gender.

    Id. at 202-03. ___

    The district court found from extensive testimony

    that the donor-funded women's gymnastics, women's fencing and

    women's ski teams, as well as at least one women's club team,

    the water polo team, had demonstrated the interest and

    ability to compete at the top varsity level and would benefit

    from university funding.4 Id. at 190. ___

    The district court did not find that full and ___

    effective accommodation of the athletics interests and

    abilities of Brown's female students would disadvantage

    Brown's male students.

    II. II.

    Title IX provides that "[n]o person in the United

    States shall, on the basis of sex, be excluded from

    participation in, be denied the benefits of, or be subjected

    to discrimination under any education program or activity

    receiving Federal financial assistance." 20 U.S.C.A.


    ____________________

    4. The district court noted that "there may be other women's
    club sports with sufficient interest and ability to warrant
    elevation to varsity status," but that plaintiffs did not
    introduce at trial substantial evidence demonstrating the
    existence of other women's club teams meeting the criteria.
    Cohen III, 879 F. Supp. at 190 n.14. _________

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    1681(a) (West 1990). As a private institution that receives

    federal financial assistance, Brown is required to comply

    with Title IX.

    Title IX also specifies that its prohibition

    against gender discrimination shall not "be interpreted to

    require any educational institution to grant preferential or

    disparate treatment to the members of one sex on account of

    an imbalance which may exist" between the total number or

    percentage of persons of that sex participating in any

    federally supported program or activity, and "the total

    number or percentage of persons of that sex in any community,

    State, section, or other area." 20 U.S.C.A. 1681(b) (West

    1990). Subsection (b) also provides, however, that it "shall

    not be construed to prevent the consideration in any . . .

    proceeding under this chapter of statistical evidence tending

    to show that such an imbalance exists with respect to the

    participation in, or receipt of the benefits of, any such

    program or activity by the members of one sex." Id. ___

    Applying 1681(b), the prior panel held that Title

    IX "does not mandate strict numerical equality between the

    gender balance of a college's athletic program and the gender

    balance of its student body." Cohen II, 991 F.2d at 894. _________

    The panel explained that, while evidence of a gender-based

    disparity in an institution's athletics program is relevant

    to a determination of noncompliance, "a court assessing Title



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    IX compliance may not find a violation solely because there ______

    is a disparity between the gender composition of an

    educational institution's student constituency, on the one

    hand, and its athletic programs, on the other hand." Id. at ___

    895.

    Congress enacted Title IX in response to its

    finding -- after extensive hearings held in 1970 by the House

    Special Subcommittee on Education -- of pervasive

    discrimination against women with respect to educational

    opportunities. 118 Cong. Rec. 5804 (1972) (remarks of Sen.

    Bayh); North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523 _________________________ ____

    n.13 (1982).

    Title IX was passed with two objectives in mind:

    "to avoid the use of federal resources to support

    discriminatory practices," and "to provide individual

    citizens effective protection against those practices."

    Cannon v. University of Chicago, 441 U.S. 677, 704 (1979). ______ ______________________

    To accomplish these objectives, Congress directed all

    agencies extending financial assistance to educational

    institutions to develop procedures for terminating financial

    assistance to institutions that violate Title IX. 20 U.S.C.

    1682.

    The agency responsible for administering Title IX

    is the United States Department of Education ("DED"), through





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    its Office for Civil Rights ("OCR").5 Congress expressly

    delegated to DED the authority to promulgate regulations for

    determining whether an athletics program complies with Title

    IX. Pub. L. No. 93-380, 88 Stat. 612 (1974).6 The

    regulations specifically address athletics at 34 C.F.R.

    106.37(c) and 106.41. The regulation at issue in this case,

    34 C.F.R. 106.41 (1995), provides:

    (a) General. No person shall, on the _______
    basis of sex, be excluded from
    participation in, be denied the benefits
    of, be treated differently from another
    person or otherwise be discriminated
    against in any interscholastic,
    intercollegiate, club or intramural
    athletics offered by a recipient, and no
    recipient shall provide any such
    athletics separately on such basis.
    (b) Separate teams. Notwithstanding ______________
    the requirements of paragraph (a) of this

    ____________________

    5. Agency responsibility for administration of Title IX
    shifted from the Department of Health, Education and Welfare
    ("HEW") to DED when HEW split into two agencies, DED and the
    Department of Health and Human Services. The regulations and
    agency documents discussed herein were originally promulgated
    by HEW, the administering agency at the time, and later
    adopted by the present administering agency, DED. See Cohen ___ _____
    II, 991 F.2d at 895; Cohen III, 879 F. Supp. at 194-95 n.23. __ _________
    For simplicity, we treat DED as the promulgating agency.

    6. HEW apparently received an unprecedented 9,700 comments
    on the proposed Title IX athletics regulations, see Haffer v. ___ ______
    Temple Univ. of the Commonwealth Sys. of Higher Educ., 524 F. _____________________________________________________
    Supp. 531, 536 n.9 (1981) (citing Thomas A. Cox,
    Intercollegiate Athletics and Title IX, 46 Geo. Wash. L. Rev. ______________________________________
    34, 40 (1977) ("Cox")), prompting former HEW Secretary Caspar
    Weinberger to remark, "I had not realized until the comment
    period that athletics is the single most important thing in
    the United States," id. (citing Cox at 34, quoting N.Y. ___
    Times, June 27, 1975, at 16, col. 4).



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    section, a recipient may operate or
    sponsor separate teams for members of
    each sex where selection of such teams is
    based upon competitive skill or the
    activity involved is a contact sport.
    However, where a recipient operates or
    sponsors a team in a particular sport for
    members of one sex but operates or
    sponsors no such team for members of the
    other sex, and athletic opportunities for
    members of that sex have previously been
    limited, members of the excluded sex must
    be allowed to try-out for the team
    offered unless the sport involved is a
    contact sport. For the purposes of this
    part, contact sports include boxing,
    wrestling, rugby, ice hockey, football,
    basketball and other sports the purpose
    or major activity of which involves
    bodily contact.
    c) Equal Opportunity. A recipient _________________
    which operates or sponsors
    interscholastic, intercollegiate, club or
    intramural athletics shall provide equal
    athletic opportunity for members of both
    sexes. In determining whether equal
    opportunities are available the Director
    will consider, among other factors:
    (1) Whether the selection of sports
    and levels of competition effectively
    accommodate the interests and abilities
    of members of both sexes;
    (2) The provision of equipment and
    supplies;
    (3) Scheduling of games and practice
    time;
    (4) Travel and per diem allowance;
    (5) Opportunity to receive coaching
    and academic tutoring;
    (6) Assignment and compensation for
    coaches and tutors;
    (7) Provision of locker rooms,
    practice and competitive facilities;
    (8) Provision of medical and
    training facilities and services;
    (9) Provision of housing and dining
    facilities and services;
    (10) Publicity.




    -16- -16-













    In the first appeal, this court held that an

    institution's failure effectively to accommodate both genders

    under 106.41(c)(1) is sufficient to establish a violation of

    Title IX. Cohen II, 991 F.2d at 897. ________

    In 1978, several years after the promulgation of the

    regulations, OCR published a proposed "Policy Interpretation,"

    the purpose of which was to clarify the obligations of federal

    aid recipients under Title IX to provide equal opportunities in

    athletics programs. "In particular, this Policy Interpretation

    provides a means to assess an institution's compliance with the

    equal opportunity requirements of the regulation which are set

    forth at [34 C.F.R. 106.37(c) and 106.41(c)]." 44 Fed. Reg.

    at 71,415. After considering a large number of public comments,

    OCR published the final Policy Interpretation. 44 Fed. Reg.

    71,413-71,423 (1979). While the Policy Interpretation covers

    other areas, this litigation focuses on the "Effective

    Accommodation" section, which interprets 34 C.F.R.

    106.41(c)(1), the first of the non-exhaustive list of ten factors

    to be considered in determining whether equal athletics

    opportunities are available to both genders. The Policy

    Interpretation establishes a three-part test, a two-part test,

    and factors to be considered in determining compliance under 34

    C.F.R. 106.41(c)(1). At issue in this appeal is the proper







    -17- -17-













    interpretation of the first of these, the so-called three-part

    test,7 which inquires as follows:

    (1) Whether intercollegiate level
    participation opportunities for male and
    female students are provided in numbers
    substantially proportionate to their
    respective enrollments; or
    (2) Where the members of one sex
    have been and are underrepresented among
    intercollegiate athletes, whether the
    institution can show a history and
    continuing practice of program expansion
    which is demonstrably responsive to the
    developing interest and abilities of the
    members of that sex; or
    (3) Where the members of one sex
    are underrepresented among
    intercollegiate athletes, and the
    institution cannot show a continuing
    practice of program expansion such as
    that cited above, whether it can be
    demonstrated that the interests and
    abilities of the members of that sex have
    been fully and effectively accommodated
    by the present program.

    44 Fed. Reg. at 71,418.

    The district court held that, "because Brown

    maintains a 13.01% disparity between female participation in

    intercollegiate athletics and female student enrollment, it

    cannot gain the protection of prong one." Cohen III, 879 F. _________

    Supp. at 211. Nor did Brown satisfy prong two. While

    acknowledging that Brown "has an impressive history of program _______

    expansion," the district court found that Brown failed to


    ____________________

    7. For clarification, we note that the cases refer to each
    part of this three-part test as a "prong" or a "benchmark."
    Prong one is also called the "substantial proportionality
    test."

    -18- -18-













    demonstrate that it has "maintained a continuing practice of __________ ________

    intercollegiate program expansion for women, the underrepresented

    sex." Id. The court noted further that, because merely reducing ___

    program offerings to the overrepresented gender does not

    constitute program expansion for the underrepresented gender, the

    fact that Brown has eliminated or demoted several men's teams

    does not amount to a continuing practice of program expansion for

    women. Id. As to prong three, the district court found that ___

    Brown had not "fully and effectively accommodated the interest _____

    and ability of the underrepresented sex 'to the extent necessary

    to provide equal opportunity in the selection of sports and

    levels of competition available to members of both sexes.'" Id. ___

    (quoting the Policy Interpretation, 44 Fed. Reg. at 71,417).

    On January 16, 1996, DED released a "Clarification

    Memorandum," which does not change the existing standards for

    compliance, but which does provide further information and

    guidelines for assessing compliance under the three-part test.

    The Clarification Memorandum contains many examples illustrating

    how institutions may meet each prong of the three-part test and

    explains how participation opportunities are to be counted under

    Title IX.

    The district court found that Brown predetermines the

    approximate number of varsity positions available to men and

    women, and, thus, that "the concept of any measure of unfilled

    but available athletic slots does not comport with reality."



    -19- -19-













    Cohen III, 879 F. Supp. at 203 n.36. The district court _________

    concluded that intercollegiate athletics opportunities "means

    real opportunities, not illusory ones, and therefore should be

    measured by counting actual participants." Id. at 204 (internal ______ ____________ ___

    quotation marks and citations omitted).

    Title IX is an anti-discrimination statute, modeled

    after Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d

    ("Title VI").8 See Cannon, 441 U.S. at 696 ("The drafters of ___ ______

    Title IX explicitly assumed that it would be interpreted and

    applied as Title VI had been during the preceding eight years.").

    Thus, Title IX and Title VI share the same constitutional

    underpinnings. See Jeffrey H. Orleans, An End To The Odyssey: ___ ______________________

    Equal Athletic Opportunities For Women, 3 Duke J. Gender L. & _______________________________________

    Pol'y 131, 133-34 (1996).

    Although the statute itself provides for no remedies

    beyond the termination of federal funding, the Supreme Court has

    determined that Title IX is enforceable through an implied

    private right of action, Cannon, 441 U.S. at 703, and that ______

    damages are available for an action brought under Title IX,

    Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992). ________ __________________________

    The right to injunctive relief under Title IX appears to have

    been impliedly accepted by the Supreme Court in Franklin. Id. at ________ ___

    64-66, 71-73. In addition, a majority of the Court in Guardians _________

    ____________________

    8. Title VI prohibits discrimination on the basis of race,
    color, or national origin in institutions benefitting from
    federal funds.

    -20- -20-













    Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983), agreed that _____ ___________________

    injunctive relief and other equitable remedies are appropriate

    for violations of Title VI.

    According to the statute's senate sponsor, Title IX

    was intended to

    provide for the women of America
    something that is rightfully theirs -- an
    equal chance to attend the schools of
    their choice, to develop the skills they
    want, and to apply those skills with the
    knowledge that they will have a fair
    chance to secure the jobs of their choice
    with equal pay for equal work.

    118 Cong. Rec. 5808 (1972) (remarks of Sen. Bayh) (quoted ______

    in Haffer, 524 F. Supp. at 541). __ ______

    III. III.

    In Cohen II, a panel of this court squarely rejected _________

    Brown's constitutional and statutory challenges to the Policy

    Interpretation's three-part test, upholding the district court's

    interpretation of the Title IX framework applicable to

    intercollegiate athletics, Cohen II, 991 F.2d at 899-902, as well ________

    as its grant of a preliminary injunction in favor of the

    plaintiffs, id. at 906-07. Despite the fact that it presents ___

    substantially the same legal arguments in this appeal as were

    raised and decided in the prior appeal, Brown asserts that there

    is "no impediment" to this court's plenary review of these

    decided issues. We disagree.

    The law of the case doctrine precludes relitigation

    of the legal issues presented in successive stages of a single


    -21- -21-













    case once those issues have been decided. See 1B James W. Moore ___

    et al., Moore's Federal Practice 0.404[1] (2d ed. 1993)

    (hereinafter "Moore"). "The doctrine of the law of the case

    directs that a decision of an appellate court on an issue of law,

    unless vacated or set aside, governs the issue during all

    subsequent stages of litigation in the nisi prius court and ____ _____

    thereafter on any further appeal." Commercial Union Ins. Co. v. _________________________

    Walbrook Ins. Co., 41 F.3d 764, 769 (1st. Cir. 1994) (citing __________________

    United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert. _____________ _______________ _____

    denied, 502 U.S. 862 (1991)). The reviewing court's mandate ______

    "constitutes the law of the case on such issues of law as were

    actually considered and decided by the appellate court, or as

    were necessarily inferred from the disposition on appeal."

    Commercial Union Ins. Co., 41 F.3d at 770 (citing 1B Moore at _________________________

    0.404[10]). The doctrine requires a trial court on remand to

    dispose of the case in accordance with the appellate court's

    mandate by implementing "'both the letter and the spirit of the

    mandate, taking into account the appellate court's opinion and

    the circumstances it embraces,'" United States v. Connell, 6 F.3d _____________ _______

    27, 30 (1st Cir. 1993) (quoting United States v. Kikumura, 947 _____________ ________

    F.2d 72, 76 (3d Cir. 1991)), and binds newly constituted panels

    to prior panel decisions on point, e.g., Irving v. United States, ____ ______ _____________

    49 F.3d 830, 833-34 (1st Cir. 1995); Metcalf & Eddy, Inc. v. _____________________

    Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935, 939 n.3 (1st _____________________________________

    Cir. 1993).



    -22- -22-













    While we have acknowledged that there are exceptions

    to the law of the case doctrine, we have emphasized that the

    circumstances in which they apply are rare. As have a number of

    other circuits, we have determined that issues decided on appeal

    should not be reopened "'unless the evidence on a subsequent

    trial was substantially different, controlling authority has

    since made a contrary decision of law applicable to such issues,

    or the decision was clearly erroneous and would work a manifest

    injustice.'" Rivera-Martinez, 931 F.2d at 151 (quoting White v. _______________ _____

    Murtha, 377 F.2d 428, 432 (5th Cir. 1967)) (other citations ______

    omitted).

    Brown's argument that the Supreme Court's recent

    decision in Adarand Constr., Inc. v. Pena, --- U.S. ---, 115 S. _____________________ ____

    Ct. 2097 (1995) ("Adarand"), controls this case necessarily _______

    presumes that Adarand constitutes a contrary intervening decision _______

    by controlling authority on point that (i) undermines the

    validity of Cohen II; (ii) compels us to depart from the law of ________

    the case doctrine; and (iii) therefore mandates that we reexamine

    Brown's equal protection claim.

    We have narrowly confined the "intervening

    controlling authority exception" to Supreme Court opinions, en __

    banc opinions of this court, or statutory overrulings. Irving, ____ ______

    49 F.3d at 834. We have also recognized that this exception may

    apply "in those rare situations where newly emergent authority,

    although not directly controlling, nevertheless offers a



    -23- -23-













    convincing reason for believing that the earlier panel, in light

    of the neoteric developments, would change its course." Id. ___

    (internal quotation marks and citation omitted).

    The law of the case doctrine is a prudential rule of

    policy and practice, rather than "an absolute bar to

    reconsideration []or a limitation on a federal court's power."

    Rivera-Martinez, 931 F.2d at 150-51. Thus, we have not construed _______________

    the doctrine as "an inflexible straitjacket that invariably

    requires rigid compliance." Northeast Utils. Serv. Co. v. ____________________________

    Federal Energy Regulatory Comm'n, 55 F.3d 686, 688 (1st Cir. __________________________________

    1995). Nevertheless, the doctrine serves important goals and

    must be "treated respectfully and, in the absence of exceptional

    circumstances, applied according to its tenor." Rivera-Martinez, _______________

    931 F.2d at 151. Accordingly, we have held that only a few

    exceptional circumstances can overcome the interests served by

    adherence to the doctrine and these exceptions are narrowly

    circumscribed. See id.; see also United States v. Reveron ___ ___ ___ ____ ______________ _______

    Martinez, 836 F.2d 684, 687 n.2 (1st Cir. 1988) ("To be sure, ________

    there may be occasions when courts can -- and should -- loosen

    the iron grip of stare decisis. But any such departure 'demands _____ _______

    special justification.'") (quoting Arizona v. Rumsey, 467 U.S. _______ ______

    203, 212 (1984)).9

    ____________________

    9. The law of the case doctrine is "akin to the doctrines of
    collateral estoppel, res judicata, and stare decisis," Joan __________ ________ ___ ________ _____ _______
    Steinman, Law Of The Case: A Judicial Puzzle In Consolidated _______________ __________________________________
    And Transferred Cases And In MultiDistrict Litigation, 135 U. _____________________________________________________
    Penn. L. Rev. 595, 598-99 (1987) (footnotes omitted), and

    -24- -24-













    For the reasons that follow, we conclude that no

    exception to the law of the case doctrine applies here and,

    therefore, that Cohen II's rulings of law control the disposition ________

    of this appeal.

    Brown contends that stare decisis does not bind this _____ _______

    panel "to the previous preliminary ruling of this Court because

    it lacks the element of finality," Reply Br. at 24, and that the

    law of the case doctrine does not prevent a court from "changing

    its mind," id. at n.47. ___

    We acknowledge that we have repeatedly emphasized

    that conclusions and holdings regarding the merits of issues

    presented on appeal from a grant of a preliminary injunction are

    to be understood as statements as to probable outcomes. E.g., ____

    A.M. Capen's Co. v. American Trading and Prod. Co., 74 F.3d 317, ________________ _______________________________

    322 (1st Cir. 1996); Narragansett Indian Tribe v. Guilbert, 934 __________________________ ________

    F.2d 4, 6 (1st Cir. 1991). The concern informing this caveat

    arises when we are asked to rule on the propriety of a district

    court's grant of a preliminary injunction (or otherwise issue a

    preliminary ruling) without benefit of full argument and a well-

    ____________________

    "has been said to lie half way between stare decisis and res _____ _______ ___
    judicata," 1B Moore at 0.404[1] n.3 (internal quotation ________
    marks and citation omitted). As applied in the federal
    courts today, the law of the case doctrine more closely
    resembles the doctrine of stare decisis. 1B Moore at _____ _______
    0.404[1]. Both doctrines reflect concerns that have long
    been recognized as fundamentally important to the rule of law
    -- e.g., stability, predictability, and respect for judicial
    authority -- and both doctrines are applied "with more or
    less rigidity depending on which interest is served." Id. at ___
    II-2.

    -25- -25-













    developed record. In this case, however, the record before the

    prior panel was "sufficiently developed and the facts necessary

    to shape the proper legal matrix [we]re sufficiently clear,"

    Cohen II, 991 F.2d at 904, and nothing in the record subsequently ________

    developed at trial constitutes substantially different evidence

    that might undermine the validity of the prior panel's rulings of

    law. In considering plaintiffs' motion for a preliminary

    injunction in Cohen I, the district court (i) "paid meticulous _______

    attention to the parties' prospects for success over the long

    haul;" (ii) "plainly visualized both the factual intricacies and

    legal complexities that characterize Title IX litigation;" (iii)

    "held a lengthy adversary hearing and reviewed voluminous written

    submissions;" and (iv) "correctly focused on the three-part

    accommodation test." Cohen II, 991 F.2d at 903. Further, as the ________

    district court noted in its opinion after the trial on the

    merits, "[n]othing in the record before me, now fully developed,

    undermines the considered legal framework established by the

    First Circuit at the preliminary injunction stage." Cohen III, __________

    879 F. Supp. at 194.

    Brown offers remarkably little in the way of analysis

    or authority to support its blithe contention that we are free to

    disregard Cohen II in disposing of this appeal. Indeed, Brown ________

    argues as if the prior panel had not decided the precise

    statutory interpretation questions presented (which it clearly

    did) and as if the district court's liability analysis were



    -26- -26-













    contrary to the law enunciated in Cohen II (which it clearly is ________

    not). Finding Brown's bare assertions to be unpersuasive, we

    decline the invitation to this court to "change its mind." The

    precedent established by the prior panel is not clearly

    erroneous; it is the law of this case and the law of this

    circuit.

    IV. IV.

    Brown contends that the district court misconstrued

    and misapplied the three-part test. Specifically, Brown argues

    that the district court's interpretation and application of the

    test is irreconcilable with the statute, the regulation, and the

    agency's interpretation of the law, and effectively renders Title

    IX an "affirmative action statute" that mandates preferential

    treatment for women by imposing quotas in excess of women's

    relative interests and abilities in athletics. Brown asserts, in

    the alternative, that if the district court properly construed

    the test, then the test itself violates Title IX and the United

    States Constitution.

    We emphasize two points at the outset. First,

    notwithstanding Brown's persistent invocation of the inflammatory

    terms "affirmative action," "preference," and "quota," this is

    not an affirmative action case. Second, Brown's efforts to evade

    the controlling authority of Cohen II by recasting its core legal ________

    arguments as challenges to the "district court's interpretation"

    of the law are unavailing; the primary arguments raised here have



    -27- -27-













    already been litigated and decided adversely to Brown in the

    prior appeal.

    A. A.

    Brown's talismanic incantation of "affirmative

    action" has no legal application to this case and is not helpful

    to Brown's cause. While "affirmative action" may have different

    connotations as a matter of politics, as a matter of law, its

    meaning is more circumscribed. True affirmative action cases

    have historically involved a voluntary10 undertaking to remedy

    discrimination (as in a program implemented by a governmental

    body, or by a private employer or institution), by means of

    specific group-based preferences or numerical goals, and a

    specific timetable for achieving those goals. See Adarand, --- ___ _______

    U.S. ---, 115 S. Ct. 2097 (1995) (remanding for review under

    strict scrutiny a challenge to a federal statute establishing a

    government-wide goal for awarding to minority businesses not less

    than 5% of the total value of all prime contracts and

    subcontracts for each fiscal year); Metro Broadcasting v. FCC, __________________ ___


    ____________________

    10. Cases and commentators sometimes treat cases involving
    involuntarily implemented plans -- e.g., plans adopted
    pursuant to a consent decree or a contempt order -- as
    affirmative action cases. See, e.g., United States v. ___ ____ ______________
    Paradise, 480 U.S. 149 (1987) (upholding a "one-black-for- ________
    one-white" promotion requirement ordered by a district court
    as an interim measure in response to proven discrimination by
    a state employer); Sheet Metal Workers v. EEOC, 478 U.S. 421 ___________________ ____
    (1986) (upholding a federal district court's imposition on
    the union a goal for racial minority membership as a remedy
    for the union's contempt of the court's earlier orders to
    cease racially discriminatory admissions practices).

    -28- -28-













    497 U.S. 547 (1990) (upholding a federal program requiring race-

    based preferences); City of Richmond v. J.A. Croson Co., 488 U.S. ________________ _______________

    469 (1989) (striking down a municipal set-aside program requiring

    that 30% of the city's construction dollars be paid to racial

    minority subcontractors on an annual basis); Johnson v. _______

    Transportation Agency, 480 U.S. 616 (1986) (upholding a temporary _____________________

    program authorizing a county agency to consider sex and race as

    factors in making promotions in order to achieve a statistically

    measurable improvement in the representation of women and

    minorities in major job classifications in which they had been

    historically underrepresented); Wygant v. Jackson Bd. of Educ., ______ _____________________

    476 U.S. 267 (1986) (striking down a collective-bargaining

    faculty lay-off provision requiring preferential treatment for

    certain racial minorities); Fullilove v. Klutznick, 448 U.S. 448 _________ _________

    (1980) (upholding a federal program requiring state and local

    recipients of federal public works grants to set aside 10% of

    funds for procuring goods and services from minority business

    enterprises); United Steelworkers v. Weber, 443 U.S. 193 (1979) ____________________ _____

    (upholding a collective bargaining agreement that set aside for

    blacks half the places in a new training program until the

    percentage of blacks among skilled workers at the plant was

    commensurate with the percentage of blacks in the local labor

    force); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 _______________________________ _____

    (1978) (striking down a state medical school's admissions policy

    that set aside 16 of its places for racial minorities).



    -29- -29-













    Title IX is not an affirmative action statute; it is

    an anti-discrimination statute, modeled explicitly after another

    anti-discrimination statute, Title VI. No aspect of the Title IX

    regime at issue in this case -- inclusive of the statute, the

    relevant regulation, and the pertinent agency documents --

    mandates gender-based preferences or quotas, or specific

    timetables for implementing numerical goals.

    Like other anti-discrimination statutory schemes, the

    Title IX regime permits affirmative action.11 In addition, Title _______

    IX, like other anti-discrimination schemes, permits an inference

    that a significant gender-based statistical disparity may

    indicate the existence of discrimination. Consistent with the

    school desegregation cases, the question of substantial

    proportionality under the Policy Interpretation's three-part test

    ____________________

    11. As previously noted, Title IX itself specifies only that
    the statute shall not be interpreted to require gender-based _______
    preferential or disparate treatment. 20 U.S.C. 1681(b).
    However, although Congress could easily have done so, it did
    not ban affirmative action or gender-conscious remedies under
    Title IX. See also Weber, 443 U.S. at 201-02 (construing the ___ ____ _____
    prohibition against race discrimination contained in
    703(a) and (d) of Title VII, and concluding that "an
    interpretation of the sections that forbade all race-
    conscious affirmative action would bring about an end
    completely at variance with the purpose of the statute and
    must be rejected") (internal quotation marks and citations
    omitted); id. at 205-06 (construing 703(j) of Title VII, ___
    upon which 1681(b) of Title IX was based, and concluding
    that "[t]he natural inference is that Congress chose not to
    forbid all voluntary race-conscious affirmative action").
    In addition, remedial action and voluntary
    affirmative action to overcome the effects of gender
    discrimination are permitted under the Title IX regulations,
    34 C.F.R. 106.3, and by the Policy Interpretation, 44 Fed.
    Reg. at 71,416.

    -30- -30-













    is merely the starting point for analysis, rather than the

    conclusion; a rebuttable presumption, rather than an inflexible

    requirement. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of ___ ____ _____ _____________________________

    Educ., 402 U.S. 1, 25 (1971). In short, the substantial _____

    proportionality test is but one aspect of the inquiry into

    whether an institution's athletics program complies with Title

    IX.

    Also consistent with the school desegregation cases,

    the substantial proportionality test of prong one is applied

    under the Title IX framework, not mechanically, but case-by-case,

    in a fact-specific manner. As with other anti-discrimination

    regimes, Title IX neither mandates a finding of discrimination

    based solely upon a gender-based statistical disparity, see Cohen ___ _____

    II, 991 F.2d at 895, nor prohibits gender-conscious remedial __

    measures. See Missouri v. Jenkins, --- U.S. ---, ---, 115 S. Ct. ___ ________ _______

    2038, 2048 (1995) (acknowledging the constitutional

    permissibility of court-ordered, race-conscious remedial plans

    designed to restore victims of discrimination to the positions

    they would have occupied in the absence of such conduct);

    Fullilove, 448 U.S. at 483 (recognizing that the authority of a _________

    federal court to incorporate racial criteria into a remedial

    decree also extends to statutory violations and that, where

    federal anti-discrimination laws have been violated, race-

    conscious remedies may be appropriate); Weber, 443 U.S. at 197 _____

    (holding that Title VII does not prohibit private employers from



    -31- -31-













    voluntarily implementing race-conscious measures to eliminate

    "manifest racial imbalances in traditionally segregated job

    categories"); McDaniel v. Barresi, 402 U.S. 39, 41 (1971) ________ _______

    (recognizing that measures required to remedy race discrimination

    "will almost invariably require" race-conscious classifications,

    and that "[a]ny other approach would freeze the status quo that

    is the very target of all desegregation processes").

    Another important distinction between this case and

    affirmative action cases is that the district court's remedy

    requiring Brown to accommodate fully and effectively the

    athletics interests and abilities of its women students does not

    raise the concerns underlying the Supreme Court's requirement of

    a particularized factual predicate to justify voluntary

    affirmative action plans. In reviewing equal protection

    challenges to such plans, the Court is concerned that government

    bodies are reaching out to implement race- or gender-conscious

    remedial measures that are "ageless in their reach into the past,

    and timeless in their ability to affect the future," Wygant, 476 ______

    U.S. at 276, on the basis of facts insufficient to support a

    prima facie case of a constitutional or statutory violation,

    Croson, 488 U.S. at 500, to the benefit of unidentified victims ______

    of past discrimination, see id. at 469; Wygant, 476 U.S. at 276. ___ ___ ______

    Accordingly, the Court has taken the position that voluntary

    affirmative action plans cannot be constitutionally justified

    absent a particularized factual predicate demonstrating the



    -32- -32-













    existence of "identified discrimination," see Croson, 488 U.S. at ___ ______

    500-06, because "[s]ocietal discrimination, without more, is too

    amorphous a basis for imposing a racially classified remedy,"

    Wygant, 476 U.S. at 276. ______

    From a constitutional standpoint, the case before us

    is altogether different. Here, gender-conscious relief was

    ordered by an Article III court, constitutionally compelled to

    have before it litigants with standing to raise the cause of

    action alleged; for the purpose of providing relief upon a duly

    adjudicated determination that specific defendants had

    discriminated against a certified class of women in violation of

    a federal anti-discrimination statute; based upon findings of

    fact that were subject to the Federal Rules of Evidence. The

    factual problem presented in affirmative action cases is, "Does

    the evidence support a finding of discrimination such that race-

    or gender-conscious remedial measures are appropriate?" We find

    these multiple indicia of reliability and specificity to be

    sufficient to answer that question in the affirmative.

    From the mere fact that a remedy flowing from a

    judicial determination of discrimination is gender-conscious, it

    does not follow that the remedy constitutes "affirmative action."

    Nor does a "reverse discrimination" claim arise every time an

    anti-discrimination statute is enforced. While some gender-

    conscious relief may adversely impact one gender -- a fact that

    has not been demonstrated in this case -- that alone would not



    -33- -33-













    make the relief "affirmative action" or the consequence of that

    relief "reverse discrimination." To the contrary, race- and

    gender-conscious remedies are both appropriate and

    constitutionally permissible under a federal anti-discrimination

    regime, although such remedial measures are still subject to

    equal protection review. See Miller v. Johnson, --- U.S. ---, -- ___ ______ _______

    -, 115 S. Ct. 2475, 2491 (1995) ("compliance with federal

    antidiscrimination laws cannot justify race-based districting

    where the challenged district was not reasonably necessary under

    a constitutional reading and application of those laws") (citing

    Shaw v. Reno, 509 U.S. 630, 653-54 (1993)). ____ ____

    B. B.

    Cohen II squarely rejected Brown's interpretation of _________

    the three-part test and carefully delineated its own, which is

    now the law of this circuit as well as the law of this case. On

    remand, the district court's liability analysis explicitly and

    faithfully adhered to Cohen II's mandate, and we are bound to do ________

    the same at this stage of the litigation, absent one of the

    exceptional circumstances discussed supra. Because the precise _____

    questions presented regarding the proper interpretation of the

    Title IX framework were considered and decided by a panel of this

    court in the prior appeal, and because no exception to the law of

    the case doctrine is presented, we have no occasion to reopen the

    issue here. Brown's rehashed statutory challenge is foreclosed

    by the law of the case doctrine and we are therefore bound by the



    -34- -34-













    prior panel's interpretation of the statute, the regulation, and

    the relevant agency pronouncements.

    In its liability analysis, the district court

    expressly accepted Cohen II's elucidation of the applicable law, ________

    Cohen III, 879 F. Supp. at 194, and applied the law in accordance _________

    with its mandate, id. at 210-13. Indeed, every circuit court to ___

    have reviewed a Title IX claim of discrimination in athletics

    since Cohen II was decided is in accord with its explication of ________

    the Title IX regime as it applies to athletics. See Horner v. ___ ______

    Kentucky High Sch. Athletics Ass'n, 43 F.3d 265 (6th Cir. 1994); ___________________________________

    Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir. 1994), cert. ______ __________________ _____

    denied, --- U.S. ---, 115 S. Ct. 938 (1995); Favia v. Indiana ______ _____ _______

    Univ. of Pa., 7 F.3d 332 (3d Cir. 1993); Roberts v. Colorado _____________ _______ ________

    State Bd. of Agric., 998 F.2d 824 (10th Cir.), cert. denied, 510 ___________________ _____ ______

    U.S. 1004 (1993).

    Cohen II held that the Policy Interpretation is _________

    entitled to substantial deference because it is the enforcing

    agency's "considered interpretation of the regulation." 991 F.2d

    at 896-97. Brown argues that the district court erred in

    concluding that it was obligated to give substantial deference to

    the Policy Interpretation, on the ground that "the interpretation

    is not a worthy candidate for deference," Reply Br. at 15,

    because "the urged interpretation is illogical, conflicts with

    the Constitution, the Statute, the Regulation, other Agency

    materials and practices, existing analogous caselaw and, in



    -35- -35-













    addition, is bad policy," id. We reject Brown's kitchen-sink ___

    characterization of the Policy Interpretation and its challenge

    to the substantial deference accorded that document by the

    district court.

    The Policy Interpretation represents the responsible

    agency's interpretation of the intercollegiate athletics

    provisions of Title IX and its implementing regulations. 44 Fed.

    Reg. at 71,413. It is well settled that, where, as here,

    Congress has expressly delegated to an agency the power to

    "elucidate a specific provision of a statute by regulation," the

    resulting regulations should be accorded "controlling weight

    unless they are arbitrary, capricious, or manifestly contrary to

    the statute." Chevron U.S.A. Inc. v. Natural Resources Defense ___________________ _________________________

    Council, Inc., 467 U.S. 837, 844 (1984). It is also well ______________

    established "'that an agency's construction of its own

    regulations is entitled to substantial deference.'" Martin v. ______

    Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150 _____________________________________________

    (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939 (1986)) (other ____ _____

    citation omitted). As the Supreme Court has explained,

    "[b]ecause applying an agency's regulation to complex or changing

    circumstances calls upon the agency's unique expertise and

    policymaking prerogatives, we presume that the power

    authoritatively to interpret its own regulations is a component

    of the agency's delegated lawmaking powers." Martin, 499 U.S. at ______

    151 (citation omitted).



    -36- -36-













    Applying these principles, Cohen II held that the _________

    applicable regulation, 34 C.F.R. 106.41, deserves controlling

    weight, 991 F.2d at 895; that the Policy Interpretation warrants

    substantial deference, id. at 896-97; and that, "[b]ecause the ___

    agency's rendition stands upon a plausible, if not inevitable,

    reading of Title IX, we are obligated to enforce the regulation

    according to its tenor," id. at 899 (citations omitted). Accord ___ ______

    Horner, 43 F.3d at 274-75; Kelley, 35 F.3d at 270; Favia v. ______ ______ _____

    Indiana Univ. of Pa., 812 F. Supp. 578, 584 (W.D. Pa.), aff'd, 7 ____________________ _____

    F.3d 332 (3d Cir. 1993). On remand, the district court properly

    applied the legal framework elucidated in Cohen II and explicitly ________

    followed this court's mandate in according controlling weight to

    the regulation and substantial deference to the Policy

    Interpretation. Cohen III, 879 F. Supp. at 197-99; accord _________ ______

    Kelley, 35 F.3d at 272 (holding that "neither the regulation nor ______

    the policy interpretation run afoul of the dictates of Title

    IX"). We hold that the district court did not err in the degree

    of deference it accorded the regulation and the relevant agency

    pronouncements.

    C. C.

    As previously noted, the district court held that,

    for purposes of the three-part test, the intercollegiate

    athletics participation opportunities offered by an institution

    are properly measured by counting the number of actual

    participants on intercollegiate teams. Cohen III, 879 F. Supp. _________



    -37- -37-













    at 202. The Policy Interpretation was designed specifically for

    intercollegiate athletics.12 44 Fed. Reg. at 71,413. Because the

    athletics regulation distinguishes between club sports and

    intercollegiate sports, under the Policy Interpretation, "club

    teams will not be considered to be intercollegiate teams except

    in those instances where they regularly participate in varsity

    competition." Id. at n.1. Accordingly, the district court ___

    excluded club varsity teams from the definition of

    "intercollegiate teams" and, therefore, from the calculation of

    participation opportunities, because the evidence was inadequate

    to show that the club teams regularly participated in varsity

    competition. Cohen III, 879 F. Supp. at 200. _________

    The district court's definition of athletics

    participation opportunities comports with the agency's own

    definition. See Clarification Memorandum at 2 ("In determining ___

    participation opportunities, OCR counts the number of actual

    athletes participating in the athletic program."). We find no

    error in the district court's definition and calculation of the

    intercollegiate athletics participation opportunities afforded to

    Brown students, and no error in the court's finding of a 13.01%

    disparity between the percentage of women participating in


    ____________________

    12. Application of the Policy Interpretation is not limited
    to intercollegiate athletics, however. The Policy
    Interpretation states that "its general principles will often
    apply to club, intramural, and interscholastic athletic
    programs, which are also covered by the regulation." 44 Fed.
    Reg. at 71,413.

    -38- -38-













    intercollegiate varsity athletics at Brown and the percentage of

    women in Brown's undergraduate student body.

    D. D.

    Brown contends that an athletics program equally

    accommodates both genders and complies with Title IX if it

    accommodates the relative interests and abilities of its male and ________

    female students. This "relative interests" approach posits that

    an institution satisfies prong three of the three-part test by

    meeting the interests and abilities of the underrepresented

    gender only to the extent that it meets the interests and

    abilities of the overrepresented gender.13 See Cohen II, 991 ___ ________

    F.2d at 899.

    Brown maintains that the district court's decision

    imposes upon universities the obligation to engage in

    preferential treatment for women by requiring quotas in excess of

    women's relative interests and abilities. With respect to prong

    three, Brown asserts that the district court's interpretation of

    the word "fully" "requires universities to favor women's teams

    and treat them better than men's [teams]. . . . forces them to


    ____________________

    13. We note that Brown presses its relative interests
    argument under both prong one and prong three. At trial,
    Brown argued that, "in order to succeed on prong one,
    plaintiffs bear the burden of proving that the percentage of
    women among varsity athletes is not substantially
    proportionate to the percentage of women among students ________
    interested in participating in varsity athletics." Cohen __________ __ _____________ __ _______ _________ _____
    III, 879 F. Supp. at 205. At the preliminary injunction ___
    stage, Brown propounded the same relative interests argument
    under prong three. Id. at n.41. ___

    -39- -39-













    eliminate or cap men's teams. . . . [and] forces universities to

    impose athletic quotas in excess of relative interests and

    abilities." Appellant's Br. at 55.

    The prior panel considered and rejected Brown's

    approach, observing that "Brown reads the 'full' out of the duty

    to accommodate 'fully and effectively.'" Cohen II, 991 F.2d at ________

    899. Under Cohen II's controlling interpretation, prong three _________

    "demands not merely some accommodation, but full and effective

    accommodation. If there is sufficient interest and ability among

    members of the statistically underrepresented gender, not slaked

    by existing programs, an institution necessarily fails this prong

    of the test." Id. at 898. ___

    Brown's interpretation of full and effective

    accommodation is "simply not the law." Cohen III, 879 F. Supp. _________

    at 208. We agree with the prior panel and the district court

    that Brown's relative interests approach "cannot withstand

    scrutiny on either legal or policy grounds," Cohen II, 991 F.2d ________

    at 900, because it "disadvantages women and undermines the

    remedial purposes of Title IX by limiting required program

    expansion for the underrepresented sex to the status quo level of

    relative interests," Cohen III, 879 F. Supp. at 209. After Cohen _________ _____

    II, it cannot be maintained that the relative interests approach __

    is compatible with Title IX's equal accommodation principle as it

    has been interpreted by this circuit.





    -40- -40-













    Brown argues that the district court's interpretation

    of the three-part test requires numerical proportionality, thus ________

    imposing a gender-based quota scheme in contravention of the

    statute. This argument rests, in part, upon Brown's reading of

    20 U.S.C. 1681(b) as a categorical proscription against

    consideration of gender parity. Section 1681(b) provides:

    Nothing contained in subsection (a) of
    this section shall be interpreted to
    require any educational institution to
    grant preferential or disparate treatment
    to the members of one sex on account of
    an imbalance which may exist with respect
    to the total number or percentage of
    persons of that sex participating in or
    receiving the benefits of any federally
    supported program or activity, in
    comparison with the total number or
    percentage of persons of that sex in any ______
    community, State, section or other area . _______________________________________
    . . .

    20 U.S.C.A. 1681(b) (West 1990) (emphasis added).

    The prior panel, like Brown, assumed without analysis

    that 1681(b) applies unequivocally to intercollegiate athletics

    programs. We do not question Cohen II's application of _________

    1681(b). We think it important to bear in mind, however, the

    congressional concerns that inform the proper interpretation of

    this provision. Section 1681(b) was patterned after 703(j) of

    Title VII, 42 U.S.C. 2000e-2(j), and was specifically designed

    to prohibit quotas in university admissions and hiring, based

    upon the percentage of individuals of one gender in a

    geographical community. See H.R. Rep. No. 554, 92d Cong., 1st ___

    Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 2462, 2590-92 _________ __


    -41- -41-













    (Additional Views); 117 Cong. Rec. 39,261-62 (1971) (remarks of

    Rep. Quie); 117 Cong. Rec. 30,406, 30,409 (remarks of Sen. Bayh);

    117 Cong. Rec. 39,251-52 (remarks of Rep. Mink and Rep. Green).

    Thus, the legislative history strongly suggests that the

    underscored language defines what is proscribed (in the contexts

    of admissions and hiring) in terms of a geographical area, beyond ______

    the institution, and does not refer to an imbalance within the ___ ___________ ______ ___

    university, with respect to the representation of each gender in __________

    intercollegiate athletics, as compared to the gender makeup of

    the student body.

    In any event, the three-part test is, on its face,

    entirely consistent with 1681(b) because the test does not

    require preferential or disparate treatment for either gender. _______

    Neither the Policy Interpretation's three-part test, nor the

    district court's interpretation of it, mandates statistical ________

    balancing; "[r]ather, the policy interpretation merely creates a

    presumption that a school is in compliance with Title IX and the

    applicable regulation when it achieves such a statistical

    balance." Kelley, 35 F.3d at 271. ______

    The test is also entirely consistent with 1681(b)

    as applied by the prior panel and by the district court. As

    previously noted, Cohen II expressly held that "a court assessing ________

    Title IX compliance may not find a violation solely because there ______

    is a disparity between the gender composition of an educational

    institution's student constituency, on the one hand, and its



    -42- -42-













    athletic programs, on the other hand." 991 F.2d at 895. The

    panel then carefully delineated the burden of proof, which

    requires a Title IX plaintiff to show, not only "disparity

    between the gender composition of the institution's student body

    and its athletic program, thereby proving that there is an

    underrepresented gender," id. at 901, but also "that a second ___

    element -- unmet interest -- is present," id., meaning that the ___

    underrepresented gender has not been fully and effectively

    accommodated by the institution's present athletic program, id. ___

    at 902 (citing 44 Fed. Reg. at 71,418). Only where the plaintiff

    meets the burden of proof on these elements and the institution ___

    fails to show as an affirmative defense a history and continuing

    practice of program expansion responsive to the interests and

    abilities of the underrepresented gender will liability be

    established. Surely this is a far cry from a one-step imposition

    of a gender-based quota.

    Brown simply ignores the fact that it is required to

    accommodate fully the interests and abilities of the

    underrepresented gender, not because the three-part test mandates

    preferential treatment for women ab initio, but because Brown has __ ______

    been found (under prong one) to have allocated its athletics

    participation opportunities so as to create a significant gender-

    based disparity with respect to these opportunities, and has

    failed (under prong two) to show a history and continuing

    practice of expansion of opportunities for the underrepresented



    -43- -43-













    gender. Brown's interpretation conflates prongs one and three

    and distorts the three-part test by reducing it to an abstract,

    mechanical determination of strict numerical proportionality. In

    short, Brown treats the three-part test for compliance as a one-

    part test for strict liability.

    Brown also fails to recognize that Title IX's

    remedial focus is, quite properly, not on the overrepresented

    gender, but on the underrepresented gender; in this case, women.

    Title IX and its implementing regulations protect the class for

    whose special benefit the statute was enacted. See Cannon, 441 ___ ______

    U.S. at 694. It is women and not men who have historically and

    who continue to be underrepresented in sports, not only at Brown,

    but at universities nationwide. See Williams v. School Dist. of ___ ________ _______________

    Bethlehem, Pa., 998 F.2d 168, 175 (1993) (observing that, _______________

    although Title IX and its regulations apply equally to boys and

    girls, "it would require blinders to ignore that the motivation

    for promulgation of the regulation on athletics was the historic

    emphasis on boys' athletic programs to the exclusion of girls'

    athletic programs in high schools as well as colleges"), cert. _____

    denied, 510 U.S. 1043 (1994). ______

    The prior panel held that "[t]he fact that the

    overrepresented gender is less than fully accommodated will not,

    in and of itself, excuse a shortfall in the provision of

    opportunities for the underrepresented gender." Cohen II, 991 _________

    F.2d at 899. Instead, the law requires that, absent a



    -44- -44-













    demonstration of continuing program expansion for the

    underrepresented gender under prong two of the three-part test,

    an institution must either provide athletics opportunities in

    proportion to the gender composition of the student body so as to

    satisfy prong one, or fully accommodate the interests and

    abilities of athletes of the underrepresented gender under prong

    three. Id. In other words, ___

    If a school, like Brown, eschews the
    first two benchmarks of the accommodation
    test, electing to stray from substantial
    proportionality and failing to march
    uninterruptedly in the direction of equal
    athletic opportunity, it must comply with
    the third benchmark. To do so, the
    school must fully and effectively
    accommodate the underrepresented gender's
    interests and abilities, even if that
    requires it to give the underrepresented
    gender (in this case, women) what amounts
    to a larger slice of a shrinking
    athletic-opportunity pie.

    Id. at 906. ___

    We think it clear that neither the Title IX framework

    nor the district court's interpretation of it mandates a gender-

    based quota scheme. In our view, it is Brown's relative

    interests approach to the three-part test, rather than the

    district court's interpretation, that contravenes the language

    and purpose of the test and of the statute itself. To adopt the

    relative interests approach would be, not only to overrule Cohen _____

    II, but to rewrite the enforcing agency's interpretation of its __

    own regulation so as to incorporate an entirely different

    standard for Title IX compliance. This relative interests


    -45- -45-













    standard would entrench and fix by law the significant gender-

    based disparity in athletics opportunities found by the district

    court to exist at Brown, a finding we have held to be not clearly

    erroneous. According to Brown's relative interests

    interpretation of the equal accommodation principle, the gender-

    based disparity in athletics participation opportunities at Brown

    is due to a lack of interest on the part of its female students,

    rather than to discrimination, and any attempt to remedy the

    disparity is, by definition, an unlawful quota. This approach is

    entirely contrary to "Congress's unmistakably clear mandate that

    educational institutions not use federal monies to perpetuate

    gender-based discrimination," id. at 907, and makes it virtually ___

    impossible to effectuate Congress's intent to eliminate sex

    discrimination in intercollegiate athletics.

    E. E.

    Brown also claims error in the district court's

    failure to apply Title VII standards to its analysis of whether

    Brown's intercollegiate athletics program complies with Title IX.

    The district court rejected the analogy to Title VII, noting

    that, while Title VII "seeks to determine whether gender-neutral

    job openings have been filled without regard to gender[,] Title

    IX . . . was designed to address the reality that sports teams,

    unlike the vast majority of jobs, do have official gender __

    requirements, and this statute accordingly approaches the concept





    -46- -46-













    of discrimination differently from Title VII." Cohen III, 879 F. _________

    Supp. at 205.

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

    patterned after a Title VII provision that Title VII standards

    should be applied to a Title IX analysis of whether an

    intercollegiate athletics program equally accommodates both

    genders, as Brown contends. While this court has approved the

    importation of Title VII standards into Title IX analysis, we

    have explicitly limited the crossover to the employment context.

    See Cohen II, 991 F.2d at 902 (citing Lipsett v. University of ___ ________ _______ _____________

    P.R., 864 F.2d 881, 897 (1st Cir. 1988)); but see Brown v. Hot, ____ ___ ___ _____ ____

    Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir. 1995) ____________________________

    (Title VII sexual harassment standards applied to Title IX sexual

    harassment case in non-employment context), cert. denied, --- _____ ______

    U.S. ---, 116 S. Ct. 1044 (1996).

    As Cohen II recognized, "[t]he scope and purpose of _________

    Title IX, which merely conditions government grants to

    educational institutions, are substantially different from those

    of Title VII, which sets basic employment standards." 991 F.2d

    at 902 (citation omitted). "[W]hereas Title VII is largely

    peremptory," Title IX is "largely aspirational," and thus, a

    "loosely laced buskin." Id.; see also North Haven, 456 U.S. at ___ ___ ____ ___________

    521 (directing that Title IX must be accorded "a sweep as broad

    as its language").





    -47- -47-













    It is imperative to recognize that athletics presents

    a distinctly different situation from admissions and employment

    and requires a different analysis in order to determine the

    existence vel non of discrimination. While the Title IX regime ___ ___

    permits institutions to maintain gender-segregated teams, the law _______

    does not require that student-athletes attending institutions

    receiving federal funds must compete on gender-segregated teams;

    nor does the law require that institutions provide completely

    gender-integrated athletics programs.14 To the extent that Title

    IX allows institutions to maintain single-sex teams and gender-


    ____________________

    14. See 34 C.F.R. 106.41(b) (1995) ("[A] recipient may ___ ___
    operate or sponsor separate teams for members of each sex
    where selection for such teams is based upon competitive
    skill or the activity involved is a contact sport.")
    (emphasis added). Nor do the regulations require _______
    institutions to field gender-integrated teams:

    However, where a recipient operates or
    sponsors a team in a particular sport for
    members of one sex but operates or
    sponsors no such team for members of the
    other sex, and athletic opportunities for
    members of that sex have previously been
    limited, members of the excluded sex must
    be allowed to try-out for the team
    offered unless the sport involved is a
    contact sport.

    Id. ___

    Whether or not the institution maintains gender-
    segregated teams, it must provide "gender-blind equality of
    opportunity to its student body." Cohen II, 991 F.2d at 896. ________
    While this case presents only the example of members of the
    underrepresented gender seeking the opportunity to
    participate on single-sex teams, the same analysis would
    apply where members of the underrepresented gender sought
    opportunities to play on co-ed teams.

    -48- -48-













    segregated athletics programs, men and women do not compete

    against each other for places on team rosters. Accordingly, and

    notwithstanding Brown's protestations to the contrary, the Title

    VII concept of the "qualified pool" has no place in a Title IX

    analysis of equal opportunities for male and female athletes

    because women are not "qualified" to compete for positions on

    men's teams, and vice-versa. In addition, the concept of

    "preference" does not have the same meaning, or raise the same

    equality concerns, as it does in the employment and admissions

    contexts.

    Brown's approach fails to recognize that, because

    gender-segregated teams are the norm in intercollegiate athletics

    programs, athletics differs from admissions and employment in

    analytically material ways. In providing for gender-segregated

    teams, intercollegiate athletics programs necessarily allocate ___________

    opportunities separately for male and female students, and, thus,

    any inquiry into a claim of gender discrimination must compare ____

    the athletics participation opportunities provided for men with

    those provided for women. For this reason, and because

    recruitment of interested athletes is at the discretion of the

    institution, there is a risk that the institution will recruit

    only enough women to fill positions in a program that already

    underrepresents women, and that the smaller size of the women's

    program will have the effect of discouraging women's

    participation.



    -49- -49-













    In this unique context, Title IX operates to ensure

    that the gender-segregated allocation of athletics opportunities

    does not disadvantage either gender. Rather than create a quota

    or preference, this unavoidably gender-conscious comparison

    merely provides for the allocation of athletics resources and

    participation opportunities between the sexes in a non-

    discriminatory manner. As the Seventh Circuit observed,

    "Congress itself recognized that addressing discrimination in

    athletics presented a unique set of problems not raised in areas

    such as employment and academics." Kelley, 35 F.3d at 270 ______

    (citing Sex Discrimination Regulations, Hearings Before the ________________________________________________________

    Subcommittee on Post Secondary Education of the Committee on _________________________________________________________________

    Education and Labor, 94th Cong., 1st Sess. at 46, 54, 125, 129, ___________________

    152, 177, 299-300 (1975); 118 Cong. Rec. 5807 (1972) (statement

    of Sen. Bayh); 117 Cong. Rec. 30,407 (1971) (same)).

    In contrast to the employment and admissions

    contexts, in the athletics context, gender is not an irrelevant

    characteristic. Courts and institutions must have some way of

    determining whether an institution complies with the mandate of

    Title IX and its supporting regulations to provide equal

    athletics opportunities for both genders, despite the fact that

    the institution maintains single-sex teams, and some way of

    fashioning a remedy upon a determination that the institution

    does not equally and effectively accommodate the interests and

    abilities of both genders. As the Kelley Court pointed out (in ______



    -50- -50-













    the context of analyzing the deference due the relevant athletics

    regulation and the Policy Interpretation):

    Undoubtedly the agency responsible for
    enforcement of the statute could have
    required schools to sponsor a women's
    program for every men's program offered
    and vice versa. . . . It was not
    unreasonable, however, for the agency to
    reject this course of action. Requiring
    parallel teams is a rigid approach that
    denies schools the flexibility to respond
    to the differing athletic interests of
    men and women. It was perfectly
    acceptable, therefore, for the agency to
    chart a different course and adopt an
    enforcement scheme that measures
    compliance by analyzing how a school has
    allocated its various athletic resources.

    Kelley, 35 F.3d at 271 (footnotes omitted). ______

    Each prong of the Policy Interpretation's three-part

    test determines compliance in this manner.

    Measuring compliance through an
    evaluation of a school's allocation of
    its athletic resources allows schools
    flexibility in meeting the athletic
    interests of their students and increases
    the chance that the actual interests of
    those students will be met. And if
    compliance with Title IX is to be
    measured through this sort of analysis,
    it is only practical that schools be
    given some clear way to establish that
    they have satisfied the requirements of
    the statute. The substantial
    proportionality contained in Benchmark 1
    merely establishes such a safe harbor.

    Id. (citations omitted). ___

    We find no error in the district court's refusal to

    apply Title VII standards in its inquiry into whether Brown's

    intercollegiate athletics program complies with Title IX. See ___


    -51- -51-













    Cohen II, 991 F.2d at 901 ("[T]here is no need to search for _________

    analogies where, as in the Title IX milieu, the controlling

    statutes and regulations are clear."). We conclude that the

    district court's application of the three-part test does not

    create a gender-based quota and is consistent with Title IX, 34

    C.F.R. 106.41, the Policy Interpretation, and the mandate of

    Cohen II. ________

    F. F.

    Brown has contended throughout this litigation that

    the significant disparity in athletics opportunities for men and

    women at Brown is the result of a gender-based differential in

    the level of interest in sports and that the district court's

    application of the three-part test requires universities to

    provide athletics opportunities for women to an extent that

    exceeds their relative interests and abilities in sports. Thus,

    at the heart of this litigation is the question whether Title IX

    permits Brown to deny its female students equal opportunity to

    participate in sports, based upon its unproven assertion that the

    district court's finding of a significant disparity in athletics

    opportunities for male and female students reflects, not

    discrimination in Brown's intercollegiate athletics program, but

    a lack of interest on the part of its female students that is

    unrelated to a lack of opportunities.

    We view Brown's argument that women are less

    interested than men in participating in intercollegiate



    -52- -52-













    athletics, as well as its conclusion that institutions should be

    required to accommodate the interests and abilities of its female

    students only to the extent that it accommodates the interests

    and abilities of its male students, with great suspicion. To

    assert that Title IX permits institutions to provide fewer

    athletics participation opportunities for women than for men,

    based upon the premise that women are less interested in sports

    than are men, is (among other things) to ignore the fact that

    Title IX was enacted in order to remedy discrimination that

    results from stereotyped notions of women's interests and

    abilities.

    Interest and ability rarely develop in a vacuum; they

    evolve as a function of opportunity and experience. The Policy

    Interpretation recognizes that women's lower rate of

    participation in athletics reflects women's historical lack of

    opportunities to participate in sports. See 44 Fed. Reg. at ___

    71,419 ("Participation in intercollegiate sports has historically

    been emphasized for men but not women. Partially as a

    consequence of this, participation rates of women are far below

    those of men.").

    Moreover, the Supreme Court has repeatedly condemned

    gender-based discrimination based upon "archaic and overbroad

    generalizations" about women. Schlesinger v. Ballard, 419 U.S. ___________ _______

    498, 508 (1975). See, e.g., Mississippi Univ. for Women v. ___ ____ _____________________________

    Hogan, 458 U.S. 718, 725 (1982); Califano v. Webster, 430 U.S. _____ ________ _______



    -53- -53-













    313, 317 (1977); Frontiero v. Richardson, 411 U.S. 677, 684-86 _________ __________

    (1973). The Court has been especially critical of the use of

    statistical evidence offered to prove generalized, stereotypical

    notions about men and women. For example, in holding that

    Oklahoma's 3.2% beer statute invidiously discriminated against

    males 18-20 years of age, the Court in Craig v. Boren, 429 U.S. _____ _____

    190, 208-209 (1976), stressed that "the principles embodied in

    the Equal Protection Clause are not to be rendered inapplicable

    by statistically measured but loose-fitting generalities." See ___

    also id. at 202 ("statistics exhibit a variety of . . . ____ ___

    shortcomings that seriously impugn their value to equal

    protection analysis"); id. at 204 ("proving broad sociological ___

    propositions by statistics is a dubious business, and one that

    inevitably is in tension with the normative philosophy that

    underlies the Equal Protection Clause"); Cannon, 441 U.S. at 681 ______

    n.2 (observing with respect to the relevance of the University of

    Chicago's statistical evidence regarding the small number of

    female applicants to its medical school, in comparison to male

    applicants, that "the dampening impact of a discriminatory rule

    may undermine the relevance of figures relating to actual ______

    applicants").

    Thus, there exists the danger that, rather than

    providing a true measure of women's interest in sports,

    statistical evidence purporting to reflect women's interest

    instead provides only a measure of the very discrimination that



    -54- -54-













    is and has been the basis for women's lack of opportunity to

    participate in sports. Prong three requires some kind of

    evidence of interest in athletics, and the Title IX framework

    permits the use of statistical evidence in assessing the level of

    interest in sports.15 Nevertheless, to allow a numbers-based

    ____________________

    15. Under the Policy Interpretation,

    Institutions may determine the athletic
    interests and abilities of students by
    nondiscriminatory methods of their
    choosing provided:
    a. The processes take into
    account the nationally
    increasing levels of women's
    interests and abilities;
    b. The methods of
    determining interest and
    ability do not disadvantage the
    members of an underrepresented
    sex;
    c. The methods of
    determining ability take into
    account team performance
    records; and
    d. The methods are
    responsive to the expressed
    interests of students capable
    of intercollegiate competition
    who are members of an
    underrepresented sex.

    44 Fed. Reg. at 71,417.

    The 1990 version of the Title IX Athletics
    Investigator's Manual, an internal agency document, instructs
    investigating officials to consider, inter alia, the _____ ____
    following: (i) any institutional surveys or assessments of
    students' athletics interests and abilities, see Valerie M. ___
    Bonnette & Lamar Daniel, Department of Education, Title IX
    Athletics Investigator's Manual at 22 (1990); (ii) the
    "expressed interests" of the underrepresented gender, id. at ___
    25; (iii) other programs indicative of interests and
    abilities, such as club and intramural sports, sports
    programs at "feeder" schools, community and regional sports

    -55- -55-













    lack-of-interest defense to become the instrument of further

    discrimination against the underrepresented gender would pervert

    the remedial purpose of Title IX. We conclude that, even if it

    can be empirically demonstrated that, at a particular time, women

    have less interest in sports than do men, such evidence, standing

    alone, cannot justify providing fewer athletics opportunities for

    women than for men. Furthermore, such evidence is completely

    irrelevant where, as here, viable and successful women's varsity

    teams have been demoted or eliminated. We emphasize that, on the

    facts of this case, Brown's lack-of-interest arguments are of no

    consequence. As the prior panel recognized, while the question

    of full and effective accommodation of athletics interests and

    abilities is potentially a complicated issue where plaintiffs

    seek to create a new team or to elevate to varsity status a team

    that has never competed at the varsity level, no such difficulty


    ____________________

    programs, and physical education classes, id. ___
    As the district court noted, however, the agency
    characterizes surveys as a "simple way to identify which
    additional sports might appropriately be created to achieve
    compliance. . . . Thus, a survey of interests would follow a ______
    determination that an institution does not satisfy prong
    three; it would not be utilized to make that determination in
    the first instance." Cohen III, 897 F. Supp. at 210 n.51; _________
    see 1990 Investigator's Manual at 27 (explaining that a ___
    survey or assessment of interests and abilities is not
    required by the Title IX regulation or the Policy
    Interpretation but may be required as part of a remedy when
    OCR has concluded that an institution's current program does
    not equally effectively accommodate the interests and
    abilities of students). (We note that the text of the 1990
    Investigator's Manual cited herein at page 25 was apparently
    at page 27 of the copy of the Manual before the district
    court.)

    -56- -56-













    is presented here, where plaintiffs seek to reinstate what were

    successful university-funded teams right up until the moment the

    teams were demoted.16 Cohen II, 991 F.2d at 904; see also Cohen ________ ___ ____ _____

    I, 809 F. Supp. at 992 ("Brown is cutting off varsity _

    opportunities where there is great interest and talent, and where ___

    Brown still has an imbalance between men and women varsity

    athletes in relation to their undergraduate enrollments.").

    On these facts, Brown's failure to accommodate fully

    and effectively the interests and abilities of the

    underrepresented gender is clearly established. See ___

    Clarification Memorandum at 8 ("If an institution has recently

    eliminated a viable team from the intercollegiate program, OCR

    will find that there is sufficient interest, ability, and

    available competition to sustain an intercollegiate team in that

    sport unless an institution can provide strong evidence that

    interest, ability or available competition no longer exists.");

    id. at 8-9 n.2 ("While [other] indications of interest may be ___

    helpful to OCR in ascertaining likely interest on campus,

    particularly in the absence of more direct indicia[,] an

    ____________________

    16. The district court found that the women's gymnastics
    team had won the Ivy League championship in 1989-90 and was a
    "thriving university-funded varsity team prior to the 1991
    demotion;" that the donor-funded women's fencing team had
    been successful for many years and that its request to be
    upgraded to varsity status had been supported by the
    athletics director at the time; that the donor-funded women's
    ski team had been consistently competitive despite a meager
    budget; and that the club-status women's water polo team had
    demonstrated the interest and ability to compete at full
    varsity status. Cohen III, 879 F. Supp. at 190. _________

    -57- -57-













    institution is expected to meet the actual interests and

    abilities of its students and admitted students."). Under these

    circumstances, the district court's finding that there are

    interested women able to compete at the university-funded varsity

    level, Cohen III, 879 F. Supp. at 212, is clearly correct. _________

    Finally, the tremendous growth in women's

    participation in sports since Title IX was enacted disproves

    Brown's argument that women are less interested in sports for

    reasons unrelated to lack of opportunity. See, e.g., Mike Tharp ___ ____

    et al., Sports crazy! Ready, set, go. Why we love our games, ________________________________________________________

    U.S. News & World Report, July 15, 1996, at 33-34 (attributing to

    Title IX the explosive growth of women's participation in sports

    and the debunking of "the traditional myth that women aren't

    interested in sports").

    Brown's relative interests approach is not a

    reasonable interpretation of the three-part test. This approach

    contravenes the purpose of the statute and the regulation because

    it does not permit an institution or a district court to remedy a

    gender-based disparity in athletics participation opportunities.

    Instead, this approach freezes that disparity by law, thereby

    disadvantaging further the underrepresented gender. Had Congress

    intended to entrench, rather than change, the status quo -- with

    its historical emphasis on men's participation opportunities to

    the detriment of women's opportunities -- it need not have gone

    to all the trouble of enacting Title IX.



    -58- -58-













    V. V.

    In the first appeal, this court rejected Brown's

    Fifth Amendment equal protection challenge to the statutory

    scheme. Cohen II, 991 F.2d at 900-901. Here, Brown argues that ________

    its challenge is to the decision of the district court. As Brown

    puts it, "[t]he [equal protection] violation arises from the

    court's holding that Title IX requires the imposition of quotas,

    preferential treatment, and disparate treatment in the absence of

    a compelling state interest and a determination that the remedial

    measure is 'narrowly tailored' to serve that interest." Reply

    Br. at 18 (citing Adarand, --- U.S. at ---, 115 S. Ct. at 2117). _______

    A. A.

    To the extent that Brown challenges the

    constitutionality of the statutory scheme itself, the challenge

    rests upon at least two erroneous assumptions: first, that

    Adarand is controlling authority on point that compels us, not _______

    only to consider Brown's constitutional challenge anew, but also

    to apply strict scrutiny to the analysis; second, that the

    district court's application of the law in its liability analysis

    on remand is inconsistent with the interpretation expounded in

    the prior appeal. We reject both premises.17 Brown's implicit

    ____________________

    17. We assume, without deciding, that Brown has not waived
    its equal protection claim and has standing to raise it.
    Appellees argue that this claim is waived because Brown did
    not raise it in the district court. Appellee's Br. at 55
    (citing Desjardins v. Van Buren Community Hosp., 969 F.2d __________ __________________________
    1280, 1282 (1st Cir. 1992)). Appellees also argue that, to
    the extent that the equal protection claim is viable, Brown

    -59- -59-













    reliance on Adarand as contrary intervening controlling authority _______

    that warrants a departure from the law of the case doctrine is

    misplaced because, while Adarand does make new law, the law it _______

    makes is wholly irrelevant to the disposition of this appeal,

    and, even if Adarand did apply, it does not mandate the level of _______

    scrutiny to be applied to gender-conscious government action.

    In rejecting Brown's equal protection claim, the

    Cohen II panel stated, "It is clear that Congress has broad _________

    powers under the Fifth Amendment to remedy past discrimination."

    991 F.2d at 901. The panel cited as authority Metro _____

    Broadcasting, 497 U.S. at 565-66 (for the proposition that ____________

    "Congress need not make specific findings of discrimination to

    grant race-conscious relief"), and Califano v. Webster, 430 U.S. ________ _______

    at 317 (noting that Webster upheld a social security wage law _______

    that benefitted women "in part because its purpose was 'the

    permissible one of redressing our society's longstanding

    disparate treatment of women'"). Cohen II, 991 F.2d at 901. The ________

    panel also noted that, in spite of the scant legislative history

    regarding Title IX as it applies to athletics, Congress heard a

    great deal of testimony regarding discrimination against women in

    higher education and acted to reverse the Supreme Court's

    decision in Grove City College v. Bell, 465 U.S. 555, 573-74 ___________________ ____


    ____________________

    lacks standing to raise it. Appellee's Br. at 56 (citing
    Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 1370-71 ______ ____
    (1991)). Given our disposition of this claim, we do not
    address these arguments.

    -60- -60-













    (1984) (holding that Title IX was "program-specific" and thus

    applied only to those university programs that actually receive

    federal funds and not to the rest of the university), with

    athletics prominently in mind. Cohen II, 991 F.2d at 901. ________

    In Metro Broadcasting, the Court upheld two federally __________________

    mandated race-based preference policies under intermediate

    scrutiny. 497 U.S. at 564-65 (holding that benign race-conscious

    measures mandated by Congress "are constitutionally permissible

    to the extent that they serve important governmental objectives

    within the power of Congress and are substantially related to

    achievement of those objectives"). The Metro Broadcasting Court __________________

    applied intermediate scrutiny, notwithstanding that the previous

    year, in Croson, 488 U.S. 469, the Court applied strict scrutiny ______

    in striking down a municipal minority set-aside program for city

    construction contracts. The Metro Broadcasting Court ____________________

    distinguished Croson, noting that "[i]n fact, much of the ______

    language and reasoning in Croson reaffirmed the lesson of ______

    Fullilove18 that race-conscious classifications adopted by _________

    Congress to address racial and ethnic discrimination are subject

    ____________________

    18. In Fullilove, a plurality of the Court applied a _________
    standard subsequently acknowledged to be intermediate
    scrutiny, see Metro Broadcasting, 497 U.S. at 564, in ___ ___________________
    upholding against a Fifth Amendment equal protection
    challenge a benign race-based affirmative action program that
    was adopted by an agency at the explicit direction of
    Congress. The Fullilove plurality inquired "whether the _________
    objectives of th[e] legislation are within the power of __________
    Congress[]" and "whether the limited use of racial and ethnic
    criteria . . . is a constitutionally permissible means for _____
    achieving the congressional objectives." 448 U.S. at 473.

    -61- -61-













    to a different standard than such classifications prescribed by

    state and local governments." Metro Broadcasting, 497 U.S. at __________________

    565.

    Adarand overruled Metro Broadcasting to the extent _______ ___________________

    that Metro Broadcasting is inconsistent with Adarand's holding ___________________ _______

    that "all racial classifications, imposed by whatever federal,

    state, or local government actor, must be analyzed by a reviewing

    court under strict scrutiny." Adarand, --- U.S. at ---, 115 S. _______

    Ct. at 2113. Brown impliedly assumes that Adarand's partial _______

    overruling of Metro Broadcasting invalidates the prior panel's __________________

    disposition of Brown's equal protection challenge by virtue of

    its passing citation to Metro Broadcasting. This assumption is __________________

    erroneous because the proposition for which Cohen II cited Metro ________ _____

    Broadcasting as authority has not been vitiated by Adarand, is of ____________ _______

    no consequence to our disposition of the issues raised in this

    litigation, and is, in any event, unchallenged here.19

    B. B.

    The prior panel rejected Brown's Fifth Amendment

    equal protection20 and "affirmative action" challenges to the

    ____________________

    19. Cohen II cited Metro Broadcasting for a general __________ ____________________
    principle regarding Congress's broad powers to remedy
    discrimination, a proposition that was not reached by
    Adarand. Moreover, Webster, which Cohen II cited along with _______ _______ ________
    Metro Broadcasting, was not overruled or in any way rendered __________________
    suspect by Adarand. _______

    20. It is well settled that the reach of the equal
    protection guarantee of the Fifth Amendment Due Process
    Clause -- the basis for Brown's equal protection claim -- is
    coextensive with that of the Fourteenth Amendment Equal

    -62- -62-













    statutory scheme. Cohen II, 991 F.2d at 901 (finding no _________

    constitutional infirmity, assuming arguendo, that the regulation ________

    creates a classification somewhat in favor of women). Thus, to

    the extent that Brown challenges the statutory scheme itself,

    that challenge is foreclosed under the law of the case doctrine.

    Nevertheless, the remedy ordered for a violation of a federal

    anti-discrimination statute is still subject to equal protection

    review, assuming that it constitutes gender-conscious government

    action. See Miller, --- U.S. at ---, 115 S. Ct. at 2491. ___ ______

    Therefore, we review the constitutionality of the district

    court's order requiring Brown to comply with Title IX by

    accommodating fully and effectively the athletics interests and

    abilities of its women students. Because the challenged

    classification is gender-based, it must be analyzed under the

    intermediate scrutiny test. Before proceeding to the analysis,

    however, we must first address Brown's challenge to the standard

    of review.

    Brown concedes that Adarand "does not, in partially _______

    overruling Metro Broadcasting, set forth the proper standard of ___________________

    review for this case." Appellant's Br. at 29. Nevertheless,

    Brown asserts that "[w]hile Adarand is a case involving racial _______

    classification, its analysis clearly applies to gender

    classification as well." Id. at 27. Further, inappropriately ___

    ____________________

    Protection Clause. E.g., United States v. Paradise, 480 U.S. ____ _____________ ________
    at 166 n.16; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 __________ __________
    (1975).

    -63- -63-













    relying on Frontiero, 411 U.S. 677, and Croson, 488 U.S. 469, _________ ______

    Brown concludes that strict scrutiny applies to gender-based

    classifications.21 Appellant's Br. at 29; Reply Br. at 19-20.

    These conclusory assertions do not comport with the law in this

    circuit.

    First, as explained earlier, Adarand and Croson apply _______ ______

    to review of legislative affirmative action schemes. This case

    presents the issue of the legality of a federal district court's

    determination, based upon adjudicated findings of fact, that a

    federal anti-discrimination statute has been violated, and of the

    ____________________

    21. In Frontiero, a plurality of the Court concluded that _________
    gender-based classifications, "like classifications based
    upon race, alienage, or national origin, are inherently
    suspect, and must therefore be subjected to strict judicial
    scrutiny." 411 U.S. at 688. In the 23 years that have since
    elapsed, this position has never commanded a majority of the
    Court, and has never been adopted by this court. Whatever
    may be the merits of adopting strict scrutiny as the standard
    to be applied to gender-based classifications, it is
    inappropriate to suggest, as Brown does, that Frontiero _________
    compels its application here.
    Brown's assertion that Adarand obligates this _______
    court to apply Croson to its equal protection claim is also ______
    incorrect. As noted previously, Croson is an affirmative ______
    action case and does not control review of a judicial
    determination that a federal anti-discrimination statute has
    been violated. To the extent that Brown assumes that Croson ______
    governs the issue of the sufficiency of the factual predicate
    required to uphold a federally mandated, benign race- or
    gender-based classification, that assumption is also
    unfounded. As we have explained, Croson's factual concerns ______
    are not raised by a district court's determination --
    predicated upon duly adjudicated factual findings bearing
    multiple indicia of reliability and specificity -- of gender
    discrimination in violation of a federal statute. We also
    point out that Adarand did not reach the question of the _______
    sufficiency of the factual predicate required to satisfy
    strict scrutiny review of a congressionally mandated race-
    based classification.

    -64- -64-













    statutory and constitutional propriety of the judicial remedy

    ordered to provide redress to plaintiffs with standing who have

    been injured by the violation.

    Second, Adarand does not even discuss gender _______

    discrimination, and its holding is limited to explicitly race-

    based classifications. --- U.S. at ---, 115 S. Ct. at 2113. It

    can hardly be assumed that the Court intended to include gender- _______

    based classifications within Adarand's precedential scope or to _______

    elevate, sub silentio, the level of scrutiny to be applied by a ___ ________

    reviewing court to such classifications.

    Third, even if Adarand did apply, it does not dictate _______

    the level of scrutiny to be applied in this case, as Brown

    concedes. For the last twenty years, the Supreme Court has

    applied intermediate scrutiny to all cases raising equal

    protection challenges to gender-based classifications, including

    the Supreme Court's most recent gender discrimination case,

    United States v. Virginia, --- U.S. ---, 116 S. Ct. 2264 (1996) _____________ ________

    ("Virginia"); see id. at 2288 (Rehnquist, C.J., concurring in the ________ ___ ___

    judgment) (collecting cases).22

    ____________________

    22. We point out that Virginia adds nothing to the analysis ________
    of equal protection challenges to gender-based
    classifications that has not been part of that analysis since
    1979, long before Cohen II was decided. While the Virginia _________ ________
    Court made liberal use of the phrase "exceedingly persuasive
    justification," and sparse use of the formulation
    "substantially related to an important governmental
    objective," the Court nevertheless struck down the gender-
    based admissions policy at issue in that case under
    intermediate scrutiny, --- U.S. at ---, 116 S. Ct. at 2271,
    2275; id. at 2288 (Rehnquist, C.J., concurring in the ___

    -65- -65-













    Fourth, it is important to recognize that controlling

    authority does not distinguish between invidious and benign

    discrimination in the context of gender-based classifications, as

    it has in the context of racial classifications. Neither this

    court nor the Supreme Court has drawn this distinction in the

    context of gender discrimination claims or held that a less

    stringent standard applies in cases involving benign, rather than

    invidious, gender discrimination. See Hogan, 458 U.S. at 724 & ___ _____

    n.9 (reviewing benign gender-conscious admissions policy under

    intermediate scrutiny and recognizing that the analysis does not

    change with the objective of the classification); accord Wygant, ______ ______

    476 U.S. at 273. Thus, the analytical result would be same, even

    if this were an affirmative action case.

    Under intermediate scrutiny, the burden of

    demonstrating an exceedingly persuasive justification for a

    government-imposed, gender-conscious classification is met by

    showing that the classification serves important governmental

    objectives, and that the means employed are substantially related


    ____________________

    judgment), the standard applied to gender-based
    classifications since 1976, when it was first announced in
    Craig v. Boren, 429 U.S. at 197, and the test applied in both _____ _____
    Metro Broadcasting and Webster. __________________ _______
    The phrase "exceedingly persuasive justification"
    has been employed routinely by the Supreme Court in applying
    intermediate scrutiny to gender discrimination claims and is,
    in effect a short-hand expression of the well-established
    test. See Personnel Adm'r v. Feeney, 442 U.S. 256, 273 ___ ________________ ______
    (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); _________ ________
    Hogan, 458 U.S. at 724; J.E.B. v. Alabama ex rel. T.B., 511 _____ ______ _____________________
    U.S. 127, 136-37 (1994).

    -66- -66-













    to the achievement of those objectives. E.g., Hogan, 458 U.S. at ____ _____

    724. Applying that test, it is clear that the district court's

    remedial order passes constitutional muster.

    We find that the first part of the test is satisfied.

    The governmental objectives of "avoid[ing] the use of federal

    resources to support discriminatory practices," and "provid[ing]

    individual citizens effective protection against those

    practices," Cannon, 441 U.S. at 704, are clearly important ______

    objectives. We also find that judicial enforcement of federal

    anti-discrimination statutes is at least an important

    governmental objective.

    Applying the second prong of the intermediate

    scrutiny test, we find that the means employed by the district

    court in fashioning relief for the statutory violation are

    clearly substantially related to these important objectives.

    Intermediate scrutiny does not require that there be no other way

    to accomplish the objectives, but even if that were the standard,

    it would be satisfied in the unique context presented by the

    application of Title IX to athletics.

    As explained previously, Title IX as it applies to

    athletics is distinct from other anti-discrimination regimes in

    that it is impossible to determine compliance or to devise a

    remedy without counting and comparing opportunities with gender

    explicitly in mind. Even under the individual rights theory of

    equal protection, reaffirmed in Adarand, --- U.S. at ---, 115 S. _______



    -67- -67-













    Ct. at 2112 (the equal protection guarantee "protect[s] persons,

    not groups"), the only way to determine whether the rights of an

    individual athlete have been violated and what relief is

    necessary to remedy the violation is to engage in an explicitly

    gender-conscious comparison. Accordingly, even assuming that the

    three-part test creates a gender classification that favors

    women, allowing consideration of gender in determining the remedy

    for a Title IX violation serves the important objective of

    "ensur[ing] that in instances where overall athletic

    opportunities decrease, the actual opportunities available to the

    underrepresented gender do not." Kelley, 35 F.3d at 272. In ______

    addition, a gender-conscious remedial scheme is constitutionally

    permissible if it directly protects the interests of the

    disproportionately burdened gender. See Hogan, 458 U.S. at 728 ___ _____

    ("In limited circumstances, a gender-based classification

    favoring one sex can be justified if it intentionally and

    directly assists members of the sex that is disproportionately

    burdened.").

    Under Brown's interpretation of the three-part test,

    there can never be a remedy for a violation of Title IX's equal

    opportunity mandate. In concluding that the district court's

    interpretation and application of the three-part test creates a

    quota, Brown errs, in part, because it fails to recognize that

    (i) the substantial proportionality test of prong one is only the

    starting point, and not the conclusion, of the analysis; and (ii)



    -68- -68-













    prong three is not implicated unless a gender-based disparity

    with respect to athletics participation opportunities has been

    shown to exist. Where such a disparity has been established, the

    inquiry under prong three is whether the athletics interests and

    abilities of the underrepresented gender are fully and

    effectively accommodated, such that the institution may be found

    to comply with Title IX, notwithstanding the disparity.23

    Of course, a remedy that requires an institution to

    cut, add, or elevate the status of athletes or entire teams may

    impact the genders differently, but this will be so only if there

    is a gender-based disparity with respect to athletics

    opportunities to begin with, which is the only circumstance in

    which prong three comes into play. Here, however, it has not

    been shown that Brown's men students will be disadvantaged by the

    full and effective accommodation of the athletics interests and

    abilities of its women students.

    VI. VI.

    Brown assigns error to the district court's exclusion

    of certain evidence pertaining to the relative athletics

    interests of men and women. Reviewing the district court's

    ____________________

    23. Under the three-part test, the institution may also
    excuse the disparity under prong two, by showing a "history
    and continuing practice of program expansion which is
    demonstrably responsive to the developing interest and
    abilities of the [underrepresented gender]," 44 Fed. Reg. at
    71,418, in which case the compliance inquiry ends without
    reaching prong three. It has been determined that Brown
    cannot avail itself of this defense. See Cohen III, 879 F. ___ __________
    Supp. at 211.

    -69- -69-













    evidentiary rulings for abuse of discretion, see Sinai v. New ___ _____ ___

    England Tel. and Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert. _________________________ _____

    denied, --- U.S. ---, 115 S. Ct. 597 (1994), we find none. ______

    Brown first contends that the court erred in barring

    cross-examination of plaintiffs' expert Dr. Sabor on the issue of

    why girls drop out of sports before reaching college. Because

    Dr. Sabor's direct testimony did not address this issue, it was

    within the district court's discretion to limit cross-examination

    "to the subject matter of the direct examination." Fed. R. Evid.

    611(b); see Ferragama v. Chubb Life Ins. Co. of Am., 94 F.3d 26, ___ _________ __________________________

    28 (1st Cir. 1996).

    Brown also suggests that the district court's

    exclusion of statistical and survey data offered in support of

    its relative interests argument constitutes error. Although the

    district court excluded as full exhibits two studies, the NCAA

    Gender Equity Study and the results of an undergraduate poll on

    student interest in athletics, it nevertheless permitted Brown's

    experts to rely on the data contained in these two reports as a

    basis for their expert opinions.24 Because Brown's experts


    ____________________

    24. Brown also contends that the district court erred in
    excluding the NCAA Annual Report. Appellant's Br. at 56-57.
    Brown merely asserts, however, that the "study was admissible
    under Rule 803," id. at 57, and offers no explanation as to ___
    how it was prejudiced by the exclusion. Accordingly, we deem
    the argument waived. Ryan v. Royal Ins. Co. of Am., 916 F.2d ____ _____________________
    731, 734 (1st Cir. 1990) ("It is settled in this circuit that
    issues adverted to on appeal in a perfunctory manner,
    unaccompanied by some developed argumentation, are deemed to
    have been abandoned.") (citations omitted).

    -70- -70-













    relied upon the excluded data in providing their opinions on the

    issue of a gender-based differential in student interest in

    athletics, the evidence was before the trier of fact and any

    error was, therefore, harmless. See McDonough Power Equip., Inc. ___ ____________________________

    v. Greenwood, 464 U.S. 548, 553 (1984) (instructing appellate _________

    courts to "ignore errors that do not affect the essential

    fairness of the trial").

    VII. VII.

    It does not follow from our statutory and

    constitutional analyses that we endorse the district court's

    remedial order. Although we decline Brown's invitation to find

    that the district court's remedy was an abuse of discretion, we

    do find that the district court erred in substituting its own

    specific relief in place of Brown's statutorily permissible

    proposal to comply with Title IX by cutting men's teams until

    substantial proportionality was achieved.

    In Cohen II we stated that it is "established beyond ________

    peradventure that, where no contrary legislative directive

    appears, the federal judiciary possesses the power to grant any ___

    appropriate relief on a cause of action appropriately brought

    pursuant to a federal statute." 991 F.2d at 901 (citing

    Franklin, 503 U.S. at 70-71). We also observed, however, that ________

    "[w]e are a society that cherishes academic freedom and

    recognizes that universities deserve great leeway in their

    operations." 991 F.2d at 906 (citing Wynne v. Tufts Univ. Sch. _____ ________________



    -71- -71-













    of Med., 976 F.2d 791, 795 (1st Cir. 1992), cert. denied, 507 _______ _____ ______

    U.S. 1030 (1993); Lamphere v. Brown Univ., 875 F.2d 916, 922 (1st ________ ___________

    Cir. 1989)). Nevertheless, we have recognized that academic

    freedom does not embrace the freedom to discriminate. Villanueva __________

    v. Wellesley College, 930 F.2d 124, 129 (1st Cir. 1991) __________________

    (citations omitted).

    The district court itself pointed out that Brown may

    achieve compliance with Title IX in a number of ways:

    It may eliminate its athletic program
    altogether, it may elevate or create the
    requisite number of women's positions, it
    may demote or eliminate the requisite
    number of men's positions, or it may
    implement a combination of these
    remedies. I leave it entirely to Brown's
    discretion to decide how it will balance
    its program to provide equal
    opportunities for its men and women
    athletes. I recognize the financial
    constraints Brown faces; however, its own
    priorities will necessarily determine the
    path to compliance it elects to take.

    Cohen III, 879 F. Supp. at 214; see also Cohen II, 991 F.2d at _________ ___ ____ ________

    898 n.15 (noting that a school may achieve compliance with Title

    IX by "reducing opportunities for the overrepresented gender").

    With these precepts in mind, we first examine the

    compliance plan Brown submitted to the district court in response

    to its order. We then consider the district court's order

    rejecting Brown's plan and the specific relief ordered by the

    court in its place.

    Brown's proposed compliance plan stated its goal as

    follows:


    -72- -72-













    The plan has one goal: to make the
    gender ratio among University-funded
    teams at Brown substantially
    proportionate to the gender ratio of the
    undergraduate student body. To do so,
    the University must disregard the
    expressed athletic interests of one
    gender while providing advantages for
    others. The plan focuses only on _____________________________
    University-funded sports, ignoring the _________________________________________
    long history of successful donor-funded _________________________________________
    student teams. _____________

    Brown's Plan at 1 (emphasis added).

    In its introduction, Brown makes clear that it "would

    prefer to maintain its current program" and that the plan

    submitted

    is inconsistent with Brown's philosophy
    to the extent that it grants advantages
    and enforces disadvantages upon student
    athletes solely because of their gender
    and curbs the historic role of coaches in
    determining the number of athletes which
    can be provided an opportunity to
    participate. Nevertheless, the
    University wishes to act in good faith
    with the order of the Court,
    notwithstanding issues of fact and law
    which are currently in dispute.

    Id. at 2. ___

    Brown states that it "seeks to address the issue of

    proportionality while minimizing additional undue stress on

    already strained physical and fiscal resources." Id. ___

    The general provisions of the plan may be summarized

    as follows: (i) Maximum squad sizes for men's teams will be set

    and enforced. (ii) Head coaches of all teams must field squads

    that meet minimum size requirements. (iii) No additional



    -73- -73-













    discretionary funds will be used for athletics. (iv) Four new

    women's junior varsity teams -- basketball, lacrosse, soccer, and

    tennis -- will be university-funded. (v) Brown will make

    explicit a de facto junior varsity team for women's field hockey. __ _____

    Id. at 3-4. ___

    The plan sets forth nine steps for its

    implementation, id. at 4-5, and concludes that "if the Court ___

    determines that this plan is not sufficient to reach

    proportionality, phase two will be the elimination of one or more

    men's teams," id. at 5. ___

    The district court found Brown's plan to be "fatally

    flawed" for two reasons. First, despite the fact that 76 men and

    30 women participated on donor-funded varsity teams, Brown's

    proposed plan disregarded donor-funded varsity teams. District

    Court Order at 5-6. Second, Brown's plan "artificially boosts

    women's varsity numbers by adding junior varsity positions on

    four women's teams." Id. at 6. As to the propriety of Brown's ___

    proposal to come into compliance by the addition of junior

    varsity positions, the district court held:

    Positions on distinct junior varsity
    squads do not qualify as "intercollegiate
    competition" opportunities under the
    Policy Interpretation and should not be
    included in defendants' plan. As noted
    in Cohen, 879 F. Supp. at 200, _____
    "intercollegiate" teams are those that
    "regularly participate in varsity
    competition." See 44 Fed. Reg. at 71,413 ___
    n.1. Junior varsity squads, by
    definition, do not meet this criterion.
    Counting new women's junior varsity


    -74- -74-













    positions as equivalent to men's full
    varsity positions flagrantly violates the
    spirit and letter of Title IX; in no
    sense is an institution providing equal
    opportunity if it affords varsity
    positions to men but junior varsity
    positions to women.

    District Court Order at 6 (footnote omitted).

    The district court found that these two flaws in the

    proposed plan were sufficient to show that Brown had "not made a

    good faith effort to comply with this Court's mandate." Id. at ___

    8. In criticizing another facet of Brown's plan, the

    district court pointed out that

    [a]n institution does not provide equal
    opportunity if it caps its men's teams
    after they are well-stocked with high-
    caliber recruits while requiring women's
    teams to boost numbers by accepting walk-
    ons. A university does not treat its
    men's and women's teams equally if it
    allows the coaches of men's teams to set
    their own maximum capacity limits but
    overrides the judgment of coaches of
    women's teams on the same matter.

    Id. at 8-9. ___

    After rejecting Brown's proposed plan, but bearing in

    mind Brown's stated objectives, the district court fashioned its

    own remedy:

    I have concluded that Brown's stated
    objectives will be best served if I
    design a remedy to meet the requirements
    of prong three rather than prong one. In
    order to bring Brown into compliance with
    prong one under defendants' Phase II, I
    would have to order Brown to cut enough
    men's teams to eradicate approximately
    213 men's varsity positions. This
    extreme action is entirely unnecessary.


    -75- -75-













    The easy answer lies in ordering Brown to
    comply with prong three by upgrading the
    women's gymnastics, fencing, skiing, and
    water polo teams to university-funded
    varsity status. In this way, Brown could
    easily achieve prong three's standard of
    "full and effective accommodation of the
    underrepresented sex." This remedy would
    entail upgrading the positions of
    approximately 40 women. In order to
    finance the 40 additional women's
    positions, Brown certainly will not have
    to eliminate as many as the 213 men's
    positions that would be cut under Brown's
    Phase II proposal. Thus, Brown will
    fully comply with Title IX by meeting the
    standards of prong three, without
    approaching satisfaction of the standards
    of prong one.

    It is clearly in the best interest of
    both the male and the female athletes to
    have an increase in women's opportunities
    and a small decrease in men's
    opportunities, if necessary, rather than,
    as under Brown's plan, no increase in __
    women's opportunities and a large _____
    decrease in men's opportunities.
    Expanding women's athletic opportunities
    in areas where there is proven ability
    and interest is the very purpose of Title
    IX and the simplest, least disruptive,
    route to Title IX compliance at Brown.

    Id. at 11-12. ___

    The district court ordered Brown to "elevate and

    maintain women's gymnastics, women's water polo, women's skiing,

    and women's fencing to university-funded varsity status." Id. at ___

    12. The court stayed this part of the order pending appeal and

    further ordered that, in the interim, the preliminary injunction

    prohibiting Brown from eliminating or demoting any existing

    women's varsity team would remain in effect. Id. ___



    -76- -76-













    We agree with the district court that Brown's

    proposed plan fell short of a good faith effort to meet the

    requirements of Title IX as explicated by this court in Cohen II ________

    and as applied by the district court on remand. Indeed, the plan

    is replete with argumentative statements more appropriate for an

    appellate brief. It is obvious that Brown's plan was addressed

    to this court, rather than to offering a workable solution to a

    difficult problem.

    It is clear, nevertheless, that Brown's proposal to

    cut men's teams is a permissible means of effectuating compliance

    with the statute. Thus, although we understand the district

    court's reasons for substituting its own specific relief under

    the circumstances at the time, and although the district court's

    remedy is within the statutory margins and constitutional, we

    think that the district court was wrong to reject out-of-hand

    Brown's alternative plan to reduce the number of men's varsity

    teams. After all, the district court itself stated that one of

    the compliance options available to Brown under Title IX is to

    "demote or eliminate the requisite number of men's positions."

    Cohen III, 879 F. Supp. at 214. Our respect for academic freedom _________

    and reluctance to interject ourselves into the conduct of

    university affairs counsels that we give universities as much

    freedom as possible in conducting their operations consonant with

    constitutional and statutory limits. Cohen II, 991 F.2d at 906; ________

    Villanueva, 930 F.2d at 129. __________



    -77- -77-













    Brown therefore should be afforded the opportunity to

    submit another plan for compliance with Title IX. The context of

    the case has changed in two significant respects since Brown

    presented its original plan. First, the substantive issues have

    been decided adversely to Brown. Brown is no longer an appellant

    seeking a favorable result in the Court of Appeals. Second, the

    district court is not under time constraints to consider a new

    plan and fashion a remedy so as to expedite appeal. Accordingly,

    we remand the case to the district court so that Brown can submit

    a further plan for its consideration. In all other respects the

    judgment of the district court is affirmed. The preliminary

    injunction issued by the district court in Cohen I, 809 F. Supp. _______

    at 1001, will remain in effect pending a final remedial order.

    VIII. VIII.

    There can be no doubt that Title IX has changed the

    face of women's sports as well as our society's interest in and

    attitude toward women athletes and women's sports. See, e.g., ___ ____

    Frank DeFord, The Women of Atlanta, Newsweek, June 10, 1996, at _____________________

    62-71; Tharp, supra, at 33; Robert Kuttner, Vicious Circle of _____ __________________

    Exclusion, Washington Post, September 4, 1996, at A15. In _________

    addition, there is ample evidence that increased athletics

    participation opportunities for women and young girls, available

    as a result of Title IX enforcement, have had salutary effects in

    other areas of societal concern. See DeFord, supra, at 66. ___ _____





    -78- -78-













    One need look no further than the impressive

    performances of our country's women athletes in the 1996 Olympic

    Summer Games to see that Title IX has had a dramatic and positive

    impact on the capabilities of our women athletes, particularly in

    team sports. These Olympians represent the first full generation

    of women to grow up under the aegis of Title IX. The

    unprecedented success of these athletes is due, in no small

    measure, to Title IX's beneficent effects on women's sports, as

    the athletes themselves have acknowledged time and again. What

    stimulated this remarkable change in the quality of women's

    athletic competition was not a sudden, anomalous upsurge in

    women's interest in sports, but the enforcement of Title IX's

    mandate of gender equity in sports. Kuttner, supra, at A15. _____



    Affirmed in part, reversed in part, and remanded for Affirmed in part reversed in part, and remanded for

    further proceedings. No costs on appeal to either party. further proceedings. No costs on appeal to either party.





    - Dissenting opinion follows - - Dissenting opinion follows -















    -79- -79-













    TORRUELLA, Chief Judge (Dissenting). Because I am not TORRUELLA, Chief Judge (Dissenting). ___________

    persuaded that the majority's view represents the state of the

    law today, I respectfully dissent.

    I. THE LAW OF THE CASE I. THE LAW OF THE CASE

    Under the doctrine of the "law of the case," a decision

    on an issue of law made by the court at one stage of a case

    becomes a binding precedent to be followed in successive stages

    of the same litigation except in unusual circumstances. See ___

    Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st _________ ____________________________

    Cir. 1993); EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir. 1986). It ____ ________

    is well established, however, that a decision of the Supreme

    Court, that is rendered between two appeals and is irreconcilable

    with the decision on the first appeal, must be followed on the

    second appeal. See Linkletter v. Walker, 381 U.S. 618, 627 ___ __________ ______

    (1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer ____________________ _______________________________

    Auth., 945 F.2d 10, 12 (1st Cir. 1991), rev'd on other grounds, _____ _______________________

    506 U.S. 139 (1993); Young v. Herring, 917 F.2d 858 (5th Cir. _____ _______

    1990); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981), _____ _________

    cert. denied, 459 U.S. 828 (1982). I believe that we face such a ____________

    situation in the instant case.

    A. Adarand and Metro Broadcasting A. Adarand and Metro Broadcasting _______ __________________

    At the time of Cohen v. Brown University, 991 F.2d 888 _____ ________________

    (1st Cir. 1993) (Cohen II), the standard intermediate scrutiny _________

    test for discriminatory classifications based on sex required

    that "a statutory classification must be substantially related to



    -80- -80-













    an important government objective." Clark v. Jeter, 486 U.S. _____ _____

    456, 461 (1988); see also Mississippi Univ. for Women v. Hogan, _________ ___________________________ _____

    458 U.S. 718, 723-24, and n.9 (1982); Mills v. Habluetzel, 456 _____ __________

    U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); _____ _____

    Matthews v. Lucas, 427 U.S. 495, 505-06 (1976). As was also the ________ _____

    case under strict scrutiny review prior to Adarand Construction ____________________

    Inc. v. Pena, __ U.S. __, 115 S. Ct. 2097 (1995), however, ____ ____

    courts applying intermediate scrutiny sometimes allowed "benign"

    gender classifications on the grounds that they were a

    "reasonable means of compensating women as a class for past . . .

    discrimination." Ronald D. Rotunda & John E. Novack, 3 Treatise ________

    on Constitutional Law 18.23, at 277; see Califano v. Webster, _____________________ ___ ________ _______

    430 U.S. 313, 317 (1977) (allowing women to compute certain

    social security benefits with a more favorable formula than could

    be used by men); Lewis v. Cohen, 435 U.S. 948 (1978) (summary _____ _____

    affirmance of a district court decision upholding a provision of

    the Railroad Retirement Act that allowed women to retire at age

    60 while men could not retire until age 65).

    In Cohen II, we applied precisely this type of benign- ________

    classification analysis to what we viewed to be benign gender

    discrimination by the federal government. Although Cohen II, in ________

    its brief discussion of the equal protection issue, does not

    specify the precise standard it used, the court stated that "even

    if we were to assume . . . that the regulation creates a gender

    classification slanted somewhat in favor of women, we would find



    -81- -81-













    no constitutional infirmity." Cohen II, 991 F.2d at 901. Note ________

    that the focus is on the government's ability to favor women in

    this context, rather than on an "important government objective,"

    suggesting that the court considered the issue to be one of

    benign discrimination. Indeed, no governmental interest is even

    identified in Cohen II. Furthermore, both of the cases cited by ________

    the Court in Cohen II are cases in which a suspect classification ________

    was allowed because it was judged benign, see id. at 901 (citing ___ ___

    Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990) (race); ________________________ ___

    Califano v. Webster, 430 U.S. 313 (1977) (sex)). ________ _______

    Cohen II's assumption that a regulation slanted in _________

    favor of women would be permissible, Cohen II 991 F.2d at 901, ________

    and by implication that the same regulation would be

    impermissible if it favored men, was based on Metro Broadcasting, __________________

    which held that benign race-based action by the federal

    government was subject to a lower standard than non-remedial

    race-based action. See Metro Broadcasting, 497 U.S. at 564. ___ ___________________

    Specifically, the Supreme Court announced that

    benign race-conscious measures mandated
    by Congress are constitutionally
    permissible to the extent that they serve _____________________________
    important governmental objectives within _________________________________________
    the power of Congress and are _________________________________________
    substantially related to achievement of _________________________________________
    those objectives. ________________

    Id. at 565 (emphasis added). Although Metro Broadcasting ___ ___________________

    explicitly discussed race-conscious rather than gender-conscious





    -82- -82-













    classifications, we applied its standard in Cohen II. See Cohen ________ ___ _____

    II, 991 F.2d at 901. __

    Since Cohen II, however, Metro Broadcasting has been _________ ___________________

    overruled, at least in part. See Adarand Constr. Inc. v. Pena, ___ ____________________ ____

    ___ U.S. ___, ___, 115 S. Ct. 2097, 2111-12 (1995). In Adarand, _______

    the Supreme Court held that "all racial classifications . . .

    must be analyzed under strict scrutiny." Adarand, 115 S. Ct. at _______

    2113. The Court in Adarand singled out Metro Broadcasting as a _______ __________________

    "significant departure" from much of the Equal Protection

    jurisprudence that had come before it, in part because it

    suggested that "benign" government race-conscious classifications

    should be treated less skeptically than others. See Adarand, 115 ___ _______

    S. Ct. at 2112.

    In Adarand, the Supreme Court reasoned that "'it may _______

    not always be clear that a so-called preference is in fact

    benign.'" Id. (quoting Regents of Univ. of Cal. v. Bakke, 438 ___ __________________________ _____

    U.S. 265 (1978) (opinion of Powell, J.)). Additionally, the

    Supreme Court endorsed the view that

    [a]bsent searching judicial inquiry into the
    justification for such race-based measures,
    there is simply no way of determining what
    classifications are 'benign' or 'remedial'
    and what classifications are in fact
    motivated by illegitimate notions of racial
    inferiority or simple racial politics.

    Id. at 2112; see also Richmond v. J.A. Croson Co., 488 U.S. 469, ___ ________ ________ _______________

    493 (1989).





    -83- -83-













    It is not necessary to equate race and gender to see

    that the logic of Adarand -- counseling that we focus on the _______

    categories and justifications proffered rather than the labels

    attached -- applies in the context of gender. While cognizant of

    differences between race-focused and gender-focused Equal

    Protection precedent, I nevertheless think that Adarand compels _______

    us to view so-called "benign" gender-conscious governmental

    actions under the same lens as any other gender-conscious

    governmental actions. See Adarand, 115 S. Ct. at 2112; see also ___ _______ ________

    United States v. Virginia, 116 S.Ct 2264, 2274, 2277 (1996) ___________________________

    (viewing Virginia's benign justification for a gender

    classification skeptically); Shuford v. Alabama State Bd. of _______ ______________________

    Educ., 897 F. Supp. 1535, 1557 (D. Ala. 1995) (stating that _____

    courts "must look behind the recitation of a benign purpose to

    ensure that sex-based classifications redress past

    discrimination"). Rather than conduct an inquiry into whether

    Title IX and its resulting interpretations are "benign" or

    "remedial," and conscious of the fact that labels can be used to

    hide illegitimate notions of inferiority or simple politics just

    as easily in the context of gender as in the context of race, we

    should now follow Adarand's lead and subject all gender-conscious _______

    government action to the same inquiry.25

    ____________________

    25. Our discussion in Cohen II also cited Califano v. _________ ________
    Webster, 430 U.S. 313 (1977), which has not been explicitly _______
    overruled. That case concerned Congress' provision, under
    the Social Security Act, for a lower retirement age for women
    than for men, with the result that, as between similarly

    -84- -84-













    B. United States v. Virginia B. United States v. Virginia _____________ ________

    A second Supreme Court case has also made it necessary

    to review our decision in Cohen II. In United States v. _________ ______________

    Virginia, 116 S. Ct. 2264 (1996), the Court faced an Equal ________

    Protection challenge to Virginia's practice of maintaining the

    Virginia Military Institute as an all male institution. Rather

    than simply apply the traditional test requiring that gender

    classifications be "substantially related to an important

    government objective," Clark v. Jeter 486 U.S. 456, 461 (1988), _____ _____

    the Supreme Court applied a more searching "skeptical scrutiny of

    official action denying rights or opportunities based on sex,"

    id., at 2274, which requires that "[p]arties who seek to defend ___

    gender-based government action must demonstrate an 'exceedingly

    persuasive justification' for that action," id. In its ___

    discussion, the Court stated that, in order to prevail in a

    gender case, "the State must show at least that the challenged ________

    ____________________

    situated male and female wage-earners, the female wage-earner
    would be awarded higher monthly social security payments, id. ___
    at 314-16. In that case, Congress specifically found that
    more frequent and lower age limits were being applied to
    women than to men in the labor market. Id. at 319. This led ___
    the Supreme Court to characterize the provision at issue as
    remedial rather than benign, noting that the provision had
    been repealed in 1972, roughly contemporaneously with
    "congressional [anti-discrimination] reforms [that] . . .
    have lessened the economic justification for the more
    favorable benefit computation" for women. Id. at 320. The ___
    instant case should be distinguished from Califano for two ________
    reasons. First, Califano did not necessarily rule on benign ________
    classifications, as Metro Broadcasting and Adarand clearly ___________________ _______
    did. Second, Califano, unlike the instant case, contained an ________
    "exceedingly persuasive justification" for its gender-
    conscious state action.

    -85- -85-













    classification serves important governmental objectives and that

    the discriminatory means employed are substantially related to

    the achievement of those objectives." Id. at 2275 (internal ___

    quotations omitted) (emphasis added). Being "substantially

    related to an important government objective," therefore, is

    considered a necessary but not sufficient condition. The Court

    also requires a focus on "whether the proffered justification is

    "exceedingly persuasive." Id. ___

    Virginia "drastically revise[d] our established ________

    standards for reviewing sex-based classifications." Id. at 2291 ___

    (Scalia, J. dissenting). "Although the Court in two places . . .

    asks whether the State has demonstrated that the classification

    serves important governmental objectives and that the

    discriminatory means employed are substantially related to the

    achievement of those objectives . . . the Court never answers the

    question presented in anything resembling that form." Id. at ___

    2294 (citations omitted). "[T]he Court proceeds to interpret

    'exceedingly persuasive justification' in a fashion that

    contradicts the reasoning of Hogan and our other precedents." _____

    Id. ___

    What is important for our purposes is that the Supreme

    Court appears to have elevated the test applicable to sex

    discrimination cases to require an "exceedingly persuasive

    justification." This is evident from the language of both the

    majority opinion and the dissent in Virginia. ________



    -86- -86-













    This is not just a matter of semantics. Metro _____

    Broadcasting, and our application of its intermediate scrutiny ____________

    standard in Cohen II, omitted the additional "skeptical scrutiny" ________

    requirement of an "exceedingly persuasive justification" for

    gender-based government action. Compare Virginia, 116 S.Ct. at _______ ________

    2274 (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136- ______ _______ _______ ____

    37, and n.6 (1994)), and Mississippi Univ. for Women v. Holden, ___________________________ ______

    458 U.S. 718, 724 (1982), with Metro Broadcasting, 497 U.S. at ____ __________________

    564-65.

    I conclude, therefore, that Adarand and Virginia are _______ ________

    irreconcilable with the analysis in Cohen II and, accordingly, we ________

    must follow the guidance of the Supreme Court in this appeal.

    Under the new standards established in those cases, Cohen II is _________

    flawed both because it applies a lenient version of intermediate

    scrutiny that is impermissible following Adarand and because it _______

    did not apply the "exceedingly persuasive justification" test of

    Virginia. We must, as Brown urges, reexamine the Equal ________

    Protection challenge to the three-prong test as interpreted by

    the district court.

    C. Preliminary Injunction C. Preliminary Injunction

    In addition to the above reasons for considering the

    merits of this appeal, it is important to note that Cohen II was ________

    an appeal from a preliminary injunction. "When an appeal comes

    to us in that posture, the appellate court's conclusions as to

    the merits of the issues presented on preliminary injunction are



    -87- -87-













    to be understood as statements of probable outcomes, rather than

    as comprising the ultimate law of the case." A.M. Capen s Co. v. ________________

    American Trading and Prod. Co., 74 F.3d 317, 322 (1st Cir. 1996) ______________________________

    (internal quotations omitted); see also Narrangansett Indian _________ _____________________

    Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991). _____ ________

    The binding authority of Cohen II, therefore, is _________

    lessened by the fact that it was an appeal from a preliminary

    injunction. First, we now have a full record before us and a set

    of well-defined legal questions presented by the appellant.

    Trial on the merits has served to focus these questions and to

    provide background that allows us to consider these questions in

    the proper context and in detail. In its decision in Cohen II, ________

    this court recognized and, indeed, emphasized the fact that its

    holding was only preliminary. Cohen II, 991 F.2d at 902 ("a _________

    party losing the battle on likelihood of success may nonetheless

    win the war at a succeeding trial"). Rather than turning that

    ruling into a permanent one, we should review the question in

    light of the full set of facts now available.

    Second, the standard of review has changed. The Cohen _____

    II court stated that it was adopting a deferential standard of __

    review, and that "if . . . the district court made no clear error

    of law or fact, we will overturn its calibration . . . only for

    manifest abuse of discretion." Id. at 902. The test applied by ___

    the court was based on "(1) the movant's probability of victory

    on the merits; (2) the potential for irreparable harm if the



    -88- -88-













    injunction is refused; (3) the balance of interests as between

    the parties . . . and (4) the public interest." Id. The case is ___

    now before us on appeal from the merits and we must review it

    accordingly. For the purposes of this appeal, we must review

    findings of fact under a clearly erroneous standard, Reich v. _____

    Newspapers of New England, Inc., 44 F.3d 1060, 1069 (1st Cir. ________________________________

    1995) and findings of law de novo, Portsmouth v. Schlesinger, 57 _______ __________ ___________

    F.3d 12, 14 (1st Cir. 1995). Because the standard has changed,

    it is conceivable that the result of the analysis will change,

    making review appropriate.

    II. BROWN'S EQUAL PROTECTION CHALLENGE II. BROWN'S EQUAL PROTECTION CHALLENGE

    Appellees have argued that the three-prong test does

    not create a gender classification because the classification

    applies to both women and men. Although I agree that by its

    words, the test would apply to men at institutions where they are

    proportionately underrepresented in intercollegiate athletics, I

    cannot accept the argument that, via this provision, the

    Government does not classify its citizens by gender. See United ___ ______

    States v. Virginia, ___ U.S. ___, 116 S. Ct. 2264, 2274-76 (1996) ______ ________

    (applying Equal Protection review to "gender-based government

    action" where Commonwealth of Virginia attempted to maintain two

    purportedly equal single-sex institutions). Cf. Loving v. ___ ______

    Virginia, 388 U.S. 1, 8-9 (1967) (stating that even though the ________

    statute at issue applied equally to members of different racial

    classifications, it still implicated race-related Equal



    -89- -89-













    Protection concerns, since the statute itself contained race-

    conscious classifications). The fact of gender-conscious

    classification, even with equal enforcement with respect to both

    genders, requires the application of a higher level of scrutiny

    than rational basis review. We cannot pretend that an

    interpretation of a statute that contains explicit categorization

    according to gender and that has intentional gender-conscious

    effect does not represent gender-based government action. Equal

    Protection is implicated where the claim is made that a

    classification made by the government intentionally subjects an

    individual to treatment different from similarly situated

    individuals based on an impermissible characteristic, such as

    race, national origin, or gender. Ronald D. Rotunda & John E.

    Nowak, 3 Treatise on Constitutional Law 18.2, at 7-8 (2d ed. ______________________________

    1992).

    A. The District Court's Construction of the Three- The District Court's Construction of the Three-
    Prong Test Prong Test

    1. Prong One 1. Prong One

    A central issue in this case is the manner in which

    athletic "participation opportunities" are counted. During the

    1990-91 academic year, Brown fielded 16 men s and 15 women s

    varsity teams on which 566 men and 328 women participated. By

    the 1993-94 year, there were 12 university-funded men s teams and

    13 university funded women s teams. These teams included 479 men

    and 312 women. Based on an analysis of membership in varsity

    teams, the district court concluded that there existed a


    -90- -90-













    disparity between female participation in intercollegiate

    athletics and female student enrollment.

    Even assuming that membership numbers in varsity sports

    is a reasonable proxy for participation opportunities -- a view

    with which I do not concur -- contact sports should be eliminated

    from the calculus. The regulation at 34 C.F.R. 106.41(b)

    (1995) provides that an academic institution may operate separate

    teams for members of each sex "where selection of such teams is

    based upon competitive skill or the activity involved is a

    contact sport." 34 C.F.R. 106.41(b). When a team is sponsored

    only for one sex, however, and where "athletic opportunities for

    members of that sex have previously been limited, members of the

    excluded sex must be allowed to try-out for the team offered

    unless the sport involved is a contact sport," id. (emphasis ________________________________________________ ___

    added). The regulation, therefore, allows schools to operate

    single-sex teams in contact sports. In counting participation

    opportunities, therefore, it does not make sense to include in

    the calculus athletes participating in contact sports that

    include only men s teams. For example, if a university chooses

    to sponsor a football team, it is permitted to sponsor only a

    men s team. Not all sports are the same and the university

    should be given the flexibility to determine which activities are

    most beneficial to its student body. By including in its

    accounting a contact sport that requires very large numbers of

    participants, e.g., football, the district court skews the number



    -91- -91-













    of athletic participants -- making it impossible for the

    university to provide both men's and women's teams in other

    sports.

    If the athletes competing in sports for which the

    university is permitted to field single-sex teams are excluded

    from the calculation of participation rates, the proportion of

    women participants would increase dramatically and prong one

    might be satisfied. If so, the inquiry ends and Brown should be

    judged to be in compliance.

    2. Prong Two 2. Prong Two

    The district court concluded, and the majority appears

    to agree, that Brown failed to satisfy prong two because "merely

    reducing program offerings to the overrepresented gender does not

    constitute program expansion for the underrepresented gender."

    Majority Opinion at 18. This is a curious result because the

    entire three-prong test is based on relative participation rates. ________

    Prong one, for example, requires that participation opportunities

    be provided proportionately to enrollment, but does not mandate

    any absolute number of such opportunities. The district court s

    conclusion with respect to prong two, however, implies that a

    school must not only demonstrate that the proportion of women in

    their program is growing over time, it must also show that the

    absolute number of women participating is increasing.26 ________

    ____________________

    26. This requirement presents a dilemma for a school in
    which women are less interested in athletics, as Brown
    contends is the case. Under such conditions, a school may be

    -92- -92-













    Under the district court's interpretation, a school

    facing budgetary constraints must, in order to comply with prong

    two, increase the opportunities available to the underrepresented ________

    gender, even if it cannot afford to do so. Rather than

    respecting the school s right to determine the role athletics

    will play in the future -- including reducing the opportunities

    available to the formerly overrepresented gender to ensure

    proportionate opportunities -- the district court and the

    majority demand that the absolute number of opportunities ________

    provided to the underrepresented gender be increased. I see no

    possible justification for this interpretation -- the regulation

    is intended to protect against discrimination, not to promote

    athletics on college campuses. A school is not required to

    sponsor an athletic program of any particular size. It is not

    for the courts, or the legislature, for that matter, to mandate

    programs of a given size. The most that can be demanded is that

    athletics be provided in a non-discriminatory manner.

    Furthermore, the claim that a reduction in the

    opportunities given to the overrepresented gender is an

    unacceptable method of coming into compliance with the three

    prong test is contrary to both Cohen II and comments of the _________

    majority opinion. The majority quotes approvingly from Cohen v. _____

    Brown Univ., 879 F. Supp. 185 (D.R.I. 1995) (Cohen III), to ____________ __________

    ____________________

    unable to succeed under the second prong because there may
    not be enough interested female students to achieve a
    continuing increase in the number of female participants.

    -93- -93-













    demonstrate the many ways in which a university might achieve

    compliance:

    It may eliminate its athletic program
    altogether, it may elevate or create the
    requisite number of women s positions, it
    may demote or eliminate the requisite
    number of men s positions, or it may
    implement a combination of these
    remedies.

    Majority Opinion at 70 (quoting Cohen III). This conclusion is _________

    consistent with Cohen II, which states that a school may achieve ________

    compliance by reducing opportunities for the overrepresented

    gender. See Cohen II, 991 F.2d at 898 n.15. I fail to see how ___ ________

    these statements can be reconciled with the claim that Brown

    cannot satisfy prong two by reducing the number of participation

    opportunities for men.

    3. Prong Three 3. Prong Three

    Prong three of the three-prong test states that, where

    an institution does not comply with prongs one or two, compliance

    will be assessed on the basis of

    whether it can be demonstrated that the
    interests and abilities of the members of
    th[e] [proportionately underrepresented]
    sex have been fully and effectively
    accommodated by the present program.

    44 Fed. Reg. 71,413, 71,418 (December 11, 1979).

    According to the district court, Brown's athletics

    program violates prong three because members of the

    proportionately underrepresented sex have demonstrated interest

    sufficient for a university-funded varsity team that is not in



    -94- -94-













    fact being funded. The district court asserts that this is not a

    quota. Brown, on the other hand, argues that prong three is

    satisfied when (1) the interests and abilities of members of the

    proportionately underrepresented gender (2) are accommodated to

    the same degree as the proportionately overrepresented gender.

    The district court's narrow, literal interpretation

    should be rejected because prong three cannot be read in

    isolation. First, as Brown points out, the Regulation that

    includes prong three provides that, in assessing compliance under

    the regulation, "the governing principle in this area is that the

    athletic interests and abilities of male and female students be _________________________________________________________________

    equally effectively accommodated." Policy Interpretation, 44 _________________________________ _____________________

    Fed. Reg. 71,413, 71,414. Thus, Brown contends, to meet "fully"

    -- in an absolute sense -- the interests and abilities of an

    underrepresented gender, while unmet interest among the

    overrepresented gender continues, would contravene the governing

    principle of "equally effective accommodat[ion]" of the interests

    and abilities of students of both genders.

    It is also worthwhile to note that to "fully"

    accommodate the interests and abilities of the underrepresented

    sex is an extraordinarily high -- perhaps impossibly so --

    requirement. How could an academic institution with a large and

    diverse student body ever "fully" accommodate the athletic

    interests of its students? Under even the largest athletic

    program, it would be surprising to find that there is not a



    -95- -95-













    single student who would prefer to participate in athletics but

    does not do so because the school does not offer a program in the

    particular sport that interests the student. To read fully in an

    absolute sense would make the third prong virtually impossible to

    satisfy and, therefore, an irrelevant addition to the test.

    This difficulty was recognized in Cohen II, which _________

    stated that "the mere fact that there are some female students

    interested in a sport does not ipso facto require the school to ___________

    provide a varsity team in order to comply with the third

    benchmark." Cohen II 991 F.2d at 898. The balance that Cohen II ________ ________

    advocates would require the institution to ensure "participatory

    opportunities . . . when, and to the extent that, there is

    sufficient interest and ability among the members of the excluded

    sex to sustain a viable team." Id. (internal citations omitted). ___

    This standard may be practical for certain sports that require

    large teams, but what of individual sports? A "viable" tennis

    team may require only a single player. The same could be said of

    any individual sport, including golf, track and field, cycling,

    fencing, archery, and so on. Therefore, we still have the

    problem that to "fully accommodate" the interests of the

    underrepresented sex may be impossible under the district court's

    interpretation.

    In light of the above, Brown argues that prong three is

    in fact ambiguous with respect to whether "fully" means (1) an

    institution must meet 100% of the underrepresented gender's unmet



    -96- -96-













    reasonable interest and ability, or (2) an institution must meet

    the underrepresented gender's unmet reasonable interest and

    ability as fully as it meets those of the overrepresented gender.

    I agree with Brown that, in the context of OCR's Policy

    Interpretation, prong three is susceptible to at least these two

    plausible interpretations.

    Additionally, section 1681(a), a provision enacted by

    Congress as part of Title IX itself, casts doubt on the district

    court's reading of prong three. 20 U.S.C. 1681(a) (1988). As

    Brown points out, Title IX, of which the Policy Interpretation is

    an administrative interpretation, contains language that

    prohibits the ordering of preferential treatment on the basis of

    gender due to a failure of a program to substantially mirror the

    gender ratio of an institution. Specifically, with respect to

    Title IX's guarantee that no person shall be excluded on the

    basis of sex from "participation in, denied the benefits of or

    subjected to discrimination under any education program or

    activity receiving Federal financial assistance," 20 U.S.C.

    1681(a),

    [n]othing contained [therein] shall be
    interpreted to require any educational
    institution to grant preferential or
    disparate treatment to the members of one
    sex on account of an imbalance which may
    exist with respect to the total number or
    percentage of persons of the sex
    participating in or receiving the
    benefits of any federally supported
    program or activity, in comparison with
    the total number or percentage of persons
    of that sex in any community.


    -97- -97-













    Id. 1681(b). Section 1681(b) provides yet another reason why ___

    the district court's reading of prong three is troublesome and

    why Brown's reading is a reasonable alternative.

    Since the applicable regulation, 34 C.F.R. 106.41,

    and policy interpretation, 44 Fed. Reg. 71,418, are not

    manifestly contrary to the objectives of Title IX, and Congress

    has specifically delegated to an agency the responsibility to

    articulate standards governing a particular area, we must accord

    the ensuing regulation considerable deference. Chevron, U.S.A. _______________

    v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 _________________________________________

    (1984). That notwithstanding, where -- as here -- the resulting

    regulation is susceptible to more than one reasonable

    interpretation, we owe no such deference to the interpretation

    chosen where the choice is made not by the agency but by the

    district court. Therefore, like other cases of statutory

    interpretation, we should review the district court's reading de __

    novo. ____

    B. The District Court's Interpretation and the B. The District Court's Interpretation and the
    Resulting Equal Protection Problem Resulting Equal Protection Problem

    The district court's interpretation of prongs one and

    three creates an Equal Protection problem, which I analyze in two

    steps. First, the district court's interpretation creates a

    quota scheme. Second, even assuming such a quota scheme is

    otherwise constitutional, appellees have not pointed to an

    "exceedingly persuasive justification," see Virginia, 116 S.Ct. ___ ________

    at 2274, for this particular quota scheme.


    -98- -98-













    1. The Quota 1. The Quota

    I believe that the three prong test, as the district

    court interprets it, is a quota. I am in square disagreement

    with the majority, who believe that "[n]o aspect of the Title IX

    regime at issue in this case . . . mandates gender-based

    preferences or quotas." Majority Opinion at 29. Put another

    way, I agree that "Title IX is not an affirmative action

    statute," id., but I believe that is exactly what the district ___

    court has made of it. As interpreted by the district court, the

    test constitutes an affirmative action, quota-based scheme.

    I am less interested in the actual term "quota" than

    the legally cognizable characteristics that render a quota scheme

    impermissible. And those characteristics are present here in

    spades. I am not persuaded by the majority's argument that the

    three-part test does not constitute a quota because it does not

    permit an agency or court to find a violation solely on the basis

    of prong one of the test; instead, an institution must also fail

    prongs two and three. As Brown rightly argues, the district

    court's application of the three-prong test requires Brown to

    allocate its athletic resources to meet the as-yet-unmet interest

    of a member of the underrepresented sex, women in this case,

    while simultaneously neglecting any unmet interest among

    individuals of the overrepresented sex. To the extent that the

    rate of interest in athletics diverges between men and women at

    any institution, the district court's interpretation would



    -99- -99-













    require that such an institution treat an individual male

    student's athletic interest and an individual female student's

    athletic interest completely differently: one student's

    reasonable interest would have to be met, by law, while meeting ______

    the other student's interest would only aggravate the lack of

    proportionality giving rise to the legal duty. "The injury in

    cases of this kind is that a 'discriminatory classification

    prevent[s] . . . competition on an equal footing.'" Adarand, 115 _______

    S. Ct. at 2104 (quoting Northeast Fla. Chapter, Assoc'd Gen'l ______________________________________

    Contractors of America v. Jacksonville, 508 U.S. 656, 666 ________________________ ____________

    (1993)). As a result, individual male and female students would

    be precluded from competing against each other for scarce

    resources; they would instead compete only against members of

    their own gender. Cf. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th ___ _______ _____

    Cir.) (concluding that not only would government action

    precluding competition between individuals of different races for

    law school admissions be unconstitutional, but in fact even

    partial consideration of race among other factors would be

    unconstitutional), cert. denied, 116 S. Ct. 2581 (1996).27 ____________

    ____________________

    27. In response, appellees cite Kelley v. Board of Trustees, ______ _________________
    35 F.3d 265 271 (1994), for the proposition that the three-
    prong test does not constitute a quota, because it does not
    "require any educational institution to grant preferential or
    disparate treatment" to the gender underrepresented in that
    institution's athletic program. Id. However, in Kelley, the ___ ______
    Seventh Circuit, unlike the district court, did not use the
    three-prong test as a definitive test for liability. Rather,
    the Seventh Circuit endorsed the test as one for compliance,
    in dismissing the plaintiff's claims. The Seventh Circuit ___________________________
    did not consider the question of whether, had the defendant

    -100- -100-













    The majority claims that "neither the Policy

    Interpretation nor the district court's interpretation of it,

    mandates statistical balancing." Majority Opinion at 41. The ________

    logic of this position escapes me. A school can satisfy the test

    in three ways. The first prong is met if the school provides

    participation opportunities for male and female students in

    numbers substantially proportionate to their enrollments. This

    prong surely requires statistical balancing. The second prong is

    satisfied if an institution that cannot meet prong one can show a

    "continuing practice of program expansion which is demonstrably

    responsive to the developing interest and abilities of the

    members of the underrepresented sex." 44 Fed. Reg. at 71,418.

    It can hardly be denied that this prong requires statistical

    balancing as it is essentially a test that requires the school to

    show that it is moving in the direction of satisfying the first

    prong. Establishing that a school is moving inexorably closer to

    satisfying a requirement that demands statistical balancing can

    only be done by demonstrating an improvement in the statistical

    balance. In other words, the second prong also requires

    balancing. Finally, the third prong, interpreted as the majority

    advocates, dispenses with statistical balancing only because it

    ____________________

    University of Illinois not been in compliance, lack of ___
    compliance with the three-prong test alone would trigger _____
    automatic liability, nor did the Seventh Circuit spell out
    what steps would have been required of defendant. At any
    rate, Kelley pre-dates the Supreme Court's opinions in ______
    Adarand and Virginia, meaning that it suffers from the same _______ ________
    defects as Cohen II. ________

    -101- -101-













    choose to accord zero weight to one side of the balance. Even a

    single person with a reasonable unmet interest defeats

    compliance. This standard, in fact, goes farther than the

    straightforward quota test of prong one. According to the

    district court, the unmet interests of the underrepresented sex

    must be completely accommodated before any of the interest of the __________ ___

    overrepresented gender can be accommodated.28

    A pragmatic overview of the effect of the three-prong

    test leads me to reject the majority's claim that the three-prong

    test does not amount to a quota because it involves multiple

    prongs. In my view it is the result of the test, and not the

    number of steps involved, that should determine if a quota system

    exists. Regardless of how many steps are involved, the fact

    remains that the test requires proportionate participation

    opportunities for both sexes (prong one) unless one sex is simply

    not interested in participating (prong three). It seems to me

    that a quota with an exception for situations in which there are


    ____________________

    28. The problem with the majority s argument can be
    illustrated with a hypothetical college admissions policy
    that would require proportionality between the gender ratio
    of the local student aged population and that of admitted
    students. This policy is comparable to prong one of the
    three prong test and is, without a doubt, a quota. It is no
    less a quota if an exception exists for schools whose gender
    ratio differs from that of the local population but which
    admit every applicant of the underrepresented gender. It
    remains a quota because the school is forced to admit every
    female applicant until it reaches the requisite proportion.
    Similarly, the district court's interpretation requires the
    school to accommodate the interests of every female student
    until proportionality is reached.

    -102- -102-













    insufficient interested students to allow the school to meet it

    remains a quota. All of the negative effects of a quota

    remain,29 and the school can escape the quota under prong three

    only by offering preferential treatment to the group that has

    demonstrated less interest in athletics.

    2. "Extremely Persuasive Justification" Test 2. "Extremely Persuasive Justification" Test

    In view of the quota scheme adopted by the district

    court, and Congress' specific disavowal of any intent to require

    quotas as part of Title IX, appellees have not met their burden

    of showing an "exceedingly persuasive justification" for this

    gender-conscious exercise of government authority. As recently

    set forth in Virginia, "[p]arties who seek to defend gender-based ________

    government action must demonstrate an 'exceedingly persuasive

    justification' for that action." Virginia, 116 S. Ct. at 2274. ________

    While the Supreme Court in Virginia acknowledged that "[p]hysical ________

    differences between men and women . . . are enduring," id. at ___

    2276, it went on to state that such "'[i]nherent differences'

    between men and women, we have come to appreciate, remain cause

    for celebration, but not for . . . artificial constraints on an

    individual's opportunity." Id. ___




    ____________________

    29. Nor does the second prong of the test change the
    analysis. That prong merely recognizes that a school may not
    be able to meet the quotas of the first or third prong
    immediately, and therefore deems it sufficient to show
    program expansion that is responsive to the interests of the
    underrepresented sex.

    -103- -103-













    Neither appellees nor the district court have

    demonstrated an "exceedingly persuasive justification" for the

    government action that the district court has directed in this

    case. In fact, appellees have failed to point to any ___

    congressional statement or indication of intent regarding a

    proportional representation scheme as applied by the district

    court. While they point to Congress' decision to delegate

    authority to the relevant agencies, this does not amount to a

    genuine -- that is, not hypothesized or invented in view of

    litigation, id. at 2275 -- exceedingly persuasive justification ___

    in light of section 1681(b)'s "no quota" provision. We are left

    with the explanations discussed in Cohen II to the effect that ________

    Congress conducted hearings on the subject of discrimination

    against women in education. There is little more than that,

    because Congress adopted Title IX as a floor amendment without

    committee hearings or reports. See Cohen II, 991 F.2d at 893. ___ ________

    I believe that the district court's interpretation of

    the Policy Interpretation's three-prong test poses serious

    constitutional difficulties. "[W]here an otherwise acceptable

    construction of a statute would raise serious constitutional

    problems, [we] construe the statute to avoid such problems unless

    such construction is plainly contrary to the intent of Congress."

    Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. _________________________ ___________________________________

    Trades Council, 485 U.S. 568 (1988); see NLRB v. Catholic Bishop _______________ ___ ____ _______________

    of Chicago, 440 U.S. 490, 507 (1979). To the extent that ___________



    -104- -104-













    Congress expressed a specific intent germane to the district

    court's interpretation, Congress, if anything, expressed an

    aversion to quotas as a method to enforce Title IX. As a result,

    I opt for Brown's construction of prong three, which, as we have

    discussed, infra, is also a reasonable reading. _____

    Accordingly, I would reverse and remand for further

    proceedings.

    III. Evidentiary Issues III. Evidentiary Issues

    In disputes over the representation of women in

    athletic programs, it is inevitable that statistical evidence

    will be relevant. There is simply no other way to assess

    participation rates, interest levels, and abilities. The

    majority opinion, however, offers inconsistent guidance with

    respect to the role of statistics in Title IX claims. Early in

    the opinion, the majority approvingly cites to the statistical

    evaluations conducted in Cohen I, Cohen II, and Cohen III. ________ _________ __________

    Majority Opinion at 8-10. The figures in question demonstrate

    that women s participation in athletics is less than proportional

    to their enrollment. Later in the opinion, however, when the

    level of interest among women at Brown is at issue, the court

    adopts a much more critical attitude towards statistical

    evidence: "[T]here exists the danger that, rather than providing

    a true measure of women s interest in sports, statistical

    evidence purporting to reflect women s interest instead provides

    only a measure of the very discrimination that is and has been



    -105- -105-













    the basis for women s lack of opportunity." Majority Opinion at

    53. In other words, evidence of differential levels of interest

    is not to be credited because it may simply reflect the result of

    past discrimination.

    The refusal to accept surveys of interest levels as

    evidence of interest raises the question of what indicators might

    be used. The majority offers no guidance to a school seeking to

    assess the levels of interest of its students. Although the

    three-prong test, even as interpreted by the district court,

    appears to allow the school the opportunity to show a lack of

    interest, the majority rejects the best -- and perhaps the only -

    - mechanism for making such a showing.

    Brown claims that the district court erred in excluding

    evidence pertaining to the relative athletic interests of men and

    women at the university. Brown sought to introduce the NCAA

    Gender Equity Study and the results of an undergraduate poll on

    student interest in athletics, but was not permitted to do so.

    The majority is unsympathetic to Brown's claim that the disparity

    between athletic opportunities for men and women reflect a

    gender-based difference in interest levels. Indeed, despite

    Brown's attempt to present evidence in support of its claim, the

    majority characterizes Brown's argument as an "unproven

    assertion." Majority Opinion at 51.30

    ____________________

    30. Among the evidence submitted by Brown are: (i)
    admissions data showing greater athletic interest among male
    applicants than female applicants; (ii) college board data

    -106- -106-













    Furthermore, the majority recognizes that institutions

    are entitled to use any nondiscriminatory method of their

    choosing to determine athletic interests. Majority Opinion at 53

    n.15. If statistical evidence of interest levels is not to be

    considered by courts, however, there is no way for schools to

    determine whether they are in compliance. Any studies or surveys

    they might conduct in order to assess their own compliance would,

    in the event of litigation, be deemed irrelevant. Regardless of

    the efforts made by the academic institution, the specter of a

    lawsuit would be ever-present.

    In addition, the majority has put the power to control

    athletics and the provision of athletic resources in the hands of

    the underrepresented gender. Virtually every other aspect of

    college life is entrusted to the institution, but athletics has

    now been carved out as an exception and the university is no

    longer in full control of its program. Unless the two genders


    ____________________

    showing greater athletic interest and prior participation
    rates by prospective male applicants than female applicants;
    (iii) data from the Cooperative Institutional Research
    Program at UCLA indicating greater athletic interest among
    men than women; (iv) an independent telephone survey of 500
    randomly selected Brown undergraduates that reveals that
    Brown offers women participation opportunities in excess of
    their representation in the pool of interested, qualified
    students; (v) intramural and club participation rates that
    demonstrate higher participation rates among men than women;
    (vi) walk-on and try-out numbers that reflect a greater
    interest among men than women; (vii) high school
    participation rates that show a much lower rate of
    participation among females than among males; (viii) the NCAA
    Gender Equity Committee data showing that women across the
    country participate in athletics at a lower rate than men.

    -107- -107-













    participate equally in athletics, members of the underrepresented

    sex would have the ability to demand a varsity level team at any

    time if they can show sufficient interest. Apparently no weight

    is given to the sustainability of the interest, the cost of the

    sport, the university s view on the desirability of the sport,

    and so on.

    IV. FIRST AMENDMENT ISSUE IV. FIRST AMENDMENT ISSUE

    Finally, it is important to remember that Brown

    University is a private institution with a constitutionally

    protected First Amendment right to choose its curriculum.

    Athletics are part of that curriculum. Although the protections

    of the First Amendment cannot be used to justify discrimination,

    this court should not forget that it has a duty to protect a

    private institution s right to mould its own educational

    environment.

    The majority pays lip service to these concerns in the

    final pages of its long opinion, stating that " we are a society

    that cherishes academic freedom and recognizes that universities

    deserve great leeway in their operations. " Majority Opinion at

    69 (quoting Cohen II, 991 F.2d at 906), and "[o]ur respect for ________

    academic freedom and reluctance to interject ourselves into the

    conduct of university affairs counsels that we give universities

    as much freedom as possible." Majority Opinion at 75. Despite

    these statements, however, the majority in its opinion today, and

    the district court before it, have failed to give Brown



    -108- -108-













    University freedom to craft its own athletic program and to

    choose the priorities of that program. Instead, they have

    established a legal rule that straightjackets college athletics

    programs by curtailing their freedom to choose the sports they

    offer.











































    -109- -109-