Cohen v. Brown University, 1st Cir. (1996)

USCA1 Opinion
UNITED STATES COURT OF APPEALS

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
"totals."
page 11, line 12, delete "totals," id." and replace with
___
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 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
insert a new
paragraph beginning with
"Brown first contends".
On
page 68, line 9,
"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
C.F.R.
page 88,
line 22, cite
to the
C.F.R. should
"34
106.41(b) (1995)".
On page 89, replace text on line 1 with: "one

and where
be:
"athletic opportunities for
sex, however,
members of that
sex have
previously
been limited,
members of
the excluded
sex must
be
allowed to".
On
page 89, lines 11-15:
university
requires
chooses a
Delete two sentences:
non-contact sport,
that the school sponsors
allow both sexes to try-out.
34 C.F.R.
one team for
"When the
106.41(b)
each gender, or
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
On
page
19, replace "Appellees" with "appellees".
101, lines
and
"appellees".
-2-
11,
replace "Appellees"
with
On page 104, line 30, replace "female" with "females".
-3-

____________________
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

______________
________________________
and Dorr, Alison B. Marshall,
________ __________________
whom Hale
____
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,

________________
Bonnet, Hogan & Hartson L.L.P.

______ ______________________
Counsel,
American
American
Council
Council
on
Suzanne M.
__________
and Sheldon E. Steinbach, General

____________________
on
Education,
Education,
were
Association
of Independent
on
brief for
of
American
Universities,
National Association
Colleges and
Universities,
and National Association of State Universities and
Land-Grant Colleges, amici curiae.

George A. Davidson,
___________________
Carla A. Kerr,
______________
Hughes Hubbard & Reed on

_______________________
University,
Colorado
Colgate
State
Washington
College, New
brief
University,
University,
University,
York University,
Methodist University, Tulane
for Baylor
College
Fairfield
John
Seth D. Rothman
________________
Hopkins
Saint
and
University, Boston
of
the
Holy
University,
University,
Peter's College,
Cross,
George
Lafayette
Southern
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

_________________
_________________
-1-
Foundation on
__________
College Swim
brief for
American Baseball
Coaches Association of
Coaches Association,
America, National Wrestling
Coaching Association and United States Water Polo, amici curiae.

Lynette Labinger,
_________________
DeLuca,
______
Cavanagh,
________
with whom
Roney & Labinger, Amato A.

__________________ _________
DeLuca & Weizenbaum, Ltd.,

__________________________
Raymond Marcaccio,
_________________
Blish &
_______
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

_____________________________
National Women's Law
on
Center, American Association
Women/AAUW Legal Advocacy
Fund, American
brief for
of University
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
National Association
for
Sex
Women,
Equity in
National
Foundation,
Softball
Parents
Liberties
Now
Coaches
for
for Women in Education,

Education,
Council of
National Education
National
National Coalition
Commission on
Administrative Women
Legal
Defense
and
Association,
Women
Association, Women's
Rhode
Education
Northwest
Island
Employed,
Law Project,
Working
in Education,
Association, National Organization
Title IX,
Union,
Girls and Women in Sport,
Fund,
Women's
for Women
National
Law
Center,
Affiliate American
Women's
Women's
Basketball
Civil
Coaches
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
_______
Lisa W. Edwards, Attorneys,
_______________
General, Dennis J. Dimsey and

________________
Department of Justice, on brief
the United States, amicus curiae.
for
____________________
November 21, 1996

____________________
-2-2-
BOWNES,
BOWNES,
Senior Circuit Judge.

Senior Circuit Judge.
_____________________
This
action lawsuit charging Brown University, its
its
athletics
discrimination
director
against
(collectively
women
in
the
is a
class
president, and
"Brown")
operation
with
of
intercollegiate athletics program, in
violation of Title
of
20 U.S.C.
the Education Amendments of 1972,
("Title IX"), and its
106.1-106.71.
its
IX
1681-1688
implementing regulations, 34 C.F.R.
The plaintiff
class comprises
all present,
future, and
potential
participate, seek
Brown University
to participate, and/or
women students
who
are deterred
from
participating in intercollegiate athletics funded by Brown.
This suit was initiated in response to the demotion
in
May 1991
teams
of
Brown's women's
gymnastics and
from university-funded varsity
varsity status.
volleyball
status to donor-funded
Contemporaneously, Brown demoted two
teams, water polo and
funded varsity status.
all four teams lost,
men's
golf, from university-funded to donor-
As a consequence
of these demotions,
not only their university funding,
but
most of the support and privileges that accompany university-
funded varsity status at Brown.
Prior
this appeal, the
to the trial on the merits that gave rise to
district court
granted plaintiffs'
motion
for class
certification
and denied
after
defendants'
hearing
fourteen
motion
to
days
of
dismiss.
Subsequently,
testimony,
the district court granted plaintiffs' motion for
-3-3-
preliminary
injunction, ordering,
inter
_____
alia,
____
that the
women's gymnastics
and
volleyball teams
university-funded varsity status,
be
reinstated
to
and prohibiting Brown from
eliminating or reducing the status or funding of any existing
women's
intercollegiate varsity
resolved on the merits.
978, 1001 (D.R.I.
team
until
the
Cohen v. Brown Univ., 809

_____
___________
1992) ("Cohen I").

_______
case
was
F. Supp.
panel of this court
affirmed the district court's decision granting a preliminary
injunction to the plaintiffs.
888, 907
upheld
(1st Cir.
the
1993) ("Cohen II").

_________
district
institution
violates
accommodates
its
athletics
Cohen v. Brown Univ., 991 F.2d

_____
___________
court's
Title
students'
under 34 C.F.R.
In
analysis and
IX
if
it
interests
and
so doing,
ruled
that
we
an
ineffectively
abilities
in
106.41(c)(1) (1995), regardless
of its performance with respect to other Title IX areas.
Id.
___
at 897.
On remand,
the district court
lengthy
bench trial
that Brown's
program
violates Title
IX and
Cohen v. Brown Univ., 879

_____
____________
("Cohen III").
_________
within
120
Title IX,
appeal.
but
Id.
___
modified order,
stayed
The
that
supporting regulations.
214 (D.R.I.
court ordered Brown
comprehensive
plan
portion of
district court
intercollegiate athletics
F. Supp. 185,
The district
days a
its
determined after
to submit
for complying
the
order
subsequently
requiring Brown to submit
1995)
with
pending
issued
a compliance plan
-4-4-
within 60 days.
Modified Order of May 4, 1995.
was taken to ensure
of
this court's
process.
Id.
___
that the Order was "final"
jurisdiction,
for purposes
expedite the
appeal
Finding that Brown's proposed compliance
was not comprehensive and
opinion
and to
This action
that it failed to comply
and order of Cohen III,
plan
with the
the district court rejected
_________
the plan and
with
ordered in its place specific relief consistent
Brown's
stated
objectives
Order of August 17, 1995
required Brown
to elevate and
varsity status the
water polo teams.
to
the
plan.
The court's remedial
order
maintain at university-funded
women's gymnastics, fencing,
Id. at 12.
___
fashion specific
protracted
at 11.
in formulating
The
relief
was
over
the
litigation
district court's decision
made,
in part,
compliance
expedite the appeal
on the issue
of liability.
The district
entered final
judgment on
1995,
court
and on September
additional
skiing, and
27, 1995, denied
to
plan
avoid
and
Id.
___
to
at 11.
September 1,
Brown's motion for
findings of fact and to amend the judgment.
This
appeal followed.
Brown
made
claims error in
during the trial and
certain evidentiary rulings
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
the
district
court
in
grounds the test employed by
determining
-5-5-
whether
Brown's
intercollegiate athletics program complies with Title IX.
the
first
appeal, a
applicable legal
panel
of
this
court elucidated
framework, upholding the
substance of
In
the
the
district court's interpretation and application of the law in
granting
and
plaintiffs' motion
rejecting essentially
for a
the
preliminary injunction,1
same
legal arguments
Brown
makes here.
Brown contends
prior
that we
panel's explication of the
are free to
law in Cohen II.

_________
efforts to circumvent the controlling effect
unavailing,
however,
disregard the
because, under
the
Brown's
of Cohen II are
________
law
of the
case
doctrine,
court on
we are bound in
law of the case doctrine
exceptions, we conclude that none
the
was the district
remand, by the prior panel's rulings of law.
we acknowledge that the
to
this appeal, as
While
is subject
applies here, and that
decision rendered by the prior panel in the first appeal
is not,
as Brown claims, "legally
we decline Brown's invitation
issues decided in the
defective."
Accordingly,
to undertake plenary review of
previous appeal and treat Cohen II as

_________
controlling authority, dispositive of
the core issues raised
here.
____________________
1.
The prior
panel upheld
all respects save one.

in placing upon Brown
the district court's
rulings in
We held that the district court erred

the burden of proof under
prong three
of
the
three-part
test
discussed infra.
_____
used
program
to
determine
complies with
whether
an
Title
IX,
Cohen II, 991 F.2d at 903.

________
-6-6-
We find
findings
no error
in the district
court's factual
or in its interpretation and application of the law
in determining that Brown violated
Title IX in the operation
of its
program.
intercollegiate
athletics
We
therefore
affirm
in all
rulings
respects
on the
error in the
therefore
the district
issue of
liability.
We do,
district court's award
remand
the
court's analysis
case
to
however, find
of specific relief
the
and
district
court
and
for
reconsideration of the remedy in light of this opinion.
I.
I.
The
relevant
procedural
history
exhaustive
detail in
case.
facts,
of this
case
the previous
Thus, we recite the
legal
have
principles,
been set
opinions issued
forth
and
in
in this
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
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.

_________
operates a two-tiered
intercollegiate athletics program with
respect to
although Brown provides
funding:
resources required to maintain its
Brown
the financial
university-funded varsity
____________________
2.
Brown's
second
football team
competes
in
highest level of NCAA competition.
Supp. at 188 n.4.
-7-7-
Division I-AA,
the
Cohen III, 879 F.

_________
teams,
donor-funded varsity
the funds
necessary to
donations.
four
provided
teams
themselves raise
support their teams
Id. at 189.
___
demoted
athletes must
through private
The district court noted
were
eligible
for
NCAA
that the
competition,
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.
189 n.6.
The
donor-funded
Id. at
___
court found, however, that it is difficult for
varsity
athletes
to
maintain
level
of
competitiveness
these athletes
comparison
189.
commensurate with
operate
at
their abilities
competitive
to university-funded
disadvantage
varsity athletes.
in
Id. at
___
For example, the district court found that some schools
are reluctant to include
schedules3 and
varsity-level
donor-funded teams in their varsity
that donor-funded teams are
coaching,
recruits,
and
equipment, and post-season competition.
Brown's decision
and
and that
unable to obtain
funds
for
travel,
Id. at 189-90.
___
to demote the
women's volleyball
gymnastics teams and the men's water polo and golf teams
from university-funded varsity status
response to a university-wide
I, 809 F. Supp. at 981.
was apparently made in
cost-cutting directive.
The district court
Cohen
_____
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.
-8-8-
saved $62,028 by
demoting the women's
teams and $15,795
by
demoting the
men's teams,
appreciably affect the
but that the
demotions "did
not
athletic participation gender ratio."
Cohen III at 187 n.2.

_________
demotions,
benefits
university
Plaintiffs
alleged
that,
the men
students
at Brown
of a
disproportionately
resources
intercollegiate
student athletes.
to
time
of
the
already enjoyed
the
to
of both
athletics
opportunities
the
and
the
afforded
to
Thus, plaintiffs contended, what
appeared
be the even-handed demotions of two men's and two women's
teams, in fact,
of
the
large share
allocated
participation
at
women
in
perpetuated Brown's discriminatory treatment
the
athletics program.
administration
In
the
of
course
its
intercollegiate
of the
preliminary
injunction
academic
hearing, the
year
district court
1990-91,
Brown
funded
found that,
31
in the
intercollegiate
varsity
teams, 16 men's teams and 15 women's teams, Cohen I,

_______
809
Supp. at
F.
980, and
students competing on these
that,
Brown's
undergraduate
men and
During the same academic
enrollment
(2,951) men and 47.6% (2,683) women.
also summarized
894 undergraduate
teams, 63.3% (566) were
36.7% (328) were women, id. at 981.

___
year,
of the
comprised
52.4%
Id.
___
The district court
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
-9-9-
varsity
teams
were created
Brown's
merger with Pembroke College.
varsity team created
1982.
between
1971
and 1977,
after
Id.
___
The only women's
after this period was
winter track, in
Id.
___
In
district
the course
court
found
of
that,
the trial
in
on
1993-94,
the merits,
the
there
897
were
students participating in intercollegiate
of which 61.87% (555)
Cohen III, 879 F.

__________
varsity athletics,
were men and 38.13% (342)
Supp. at
192.
During the
were women.
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
men's teams
funded
in 1993-94,
program consisted of 32
and 16 women's teams.
Id.
___
Of
Brown's
teams, 16
the university-
teams, 12 were men's teams and 13 were women's teams;
of the donor-funded
were men's teams.
479
that,
teams, three were women's teams and four
Id.
___
At the time of trial,
Brown offered
university-funded varsity positions for men, as compared
to 312 for women;
men, as
compared to 30 for women.
then, Brown's
men than
Id. at 211.
___
varsity program -- including
and donor-funded
for
and 76 donor-funded varsity
for
sports -- afforded over
women.
Id.
___
at 192.
positions for
In 1993-94,
both university-
200 more positions
Accordingly,
the
district court found that Brown maintained a 13.01% disparity
between female participation in intercollegiate athletics and
-10-10-
female student enrollment,
the number of
equal,
the
generates far
id. at 211, and that

___
varsity sports
selection
of
offered to men
sports
more individual
offered
positions
"[a]lthough
and women
to
each
for male
are
gender
athletes
than for female athletes," id. at 189.

___
In
counted
computing
as participants
these
figures, the
in
intercollegiate
district
athletics
court
for
purposes of Title IX analysis those athletes who were members
of
varsity
season.
teams
Id. at 192.
___
for the
majority
of
the
last complete
Brown argued at trial that "there is no
consistent measure of actual participation rates because team
size varies throughout the
is
no
consistent
because
that
there are
yield
athletic season," and that "there
measure
of
very
different
there is a place
for this
"[e]very
rates
of 'participant'
participation
totals."
Id.
___
the athlete and coach determine
on the team for a
student, it is not
Court to second-guess their judgment and impose its
own, or anyone
varsity
participation
alternative definitions
Reasoning that "[w]here both
that
actual
else's, definition of
experience,"
varsity
'participant.'"
the
team
district
member
Id. (original
___
district court held that
is
a valuable or
court
genuine
concluded
therefore
emphasis omitted).
that
varsity
Thus, the
the "participation opportunities" offered

by
an
counting
institution
the
intercollegiate
actual
______
are
measured
by
participants
____________
on
The number
of
teams.
-11-11-
participants in
Brown's varsity athletic
program accurately reflects the number of

participation opportunities
Brown offers
because
through
practices
the
University,
"predetermines" the
its
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
The
effective
abilities
district
court did
accommodation
of
Brown's
Brown's male students.
Id. at 190.
___
of
female
the
not
___
find
that full
and
athletics
interests
and
students
would
disadvantage
II.
II.
Title IX
States
shall,
provides that "[n]o person
on
the
basis
of
sex,
participation in, be denied the benefits
to
discrimination under
receiving
Federal
excluded
from
of, or be subjected
any education
financial
be
in the United
program or
assistance."
20
activity
U.S.C.A.
____________________
4.
The district court noted that "there may be other women's
club sports
with sufficient interest and
elevation
to varsity
introduce
at trial
existence of
status," but
substantial
that plaintiffs
did not
evidence demonstrating
other women's club teams
Cohen III, 879 F. Supp. at 190 n.14.

_________
-12-12-
ability to warrant
the
meeting the criteria.
1681(a) (West 1990).
federal financial
As a
private institution that receives
assistance,
Brown is
required to
comply
with Title IX.
Title
against gender
IX
also
specifies
discrimination shall
require any educational institution
disparate treatment to the
an
imbalance which may
that
its
prohibition
not "be interpreted
to
to grant preferential or
members of one sex on
exist" between
the total
account of
number or
percentage
federally
of
persons
supported
of
program
that sex
or
participating
activity,
and
in
any
"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
participation
such an
imbalance exists with
in, or receipt
of the
respect to
benefits of,
program or activity by the members of one sex."
Applying
IX "does
not mandate
the
any such
Id.
___
1681(b), the prior panel held that Title
strict numerical equality
between the
gender balance of a college's athletic program and the gender
balance of
The panel
its student body."
explained that,
disparity in
Cohen II, 991 F.2d

_________
while evidence of
an institution's athletics
at 894.
a gender-based
program is relevant
to a determination of noncompliance, "a court assessing Title
-13-13-
IX compliance may not
find a violation solely
because there
______
is
disparity
educational
between
the
gender
institution's student
composition
of
an
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
discrimination
against
opportunities.
118 Cong.
on
Education
women
--
with respect
of
to
pervasive
educational
Rec. 5804 (1972) (remarks
Bayh); North Haven Bd. of Educ.

_________________________
of Sen.
v. Bell, 456 U.S.

____
512, 523
with two objectives
in mind:
n.13 (1982).
Title IX
was passed
"to
avoid
the
discriminatory
citizens
Cannon
______
To
of
federal
practices,"
effective
and
protection
resources
"to
these
extending
financial
those
practices."
677, 704 (1979).
Congress
assistance
institutions to develop procedures for
assistance to institutions that violate
support
individual
against
objectives,
to
provide
v. University of Chicago, 441 U.S.

______________________
accomplish
agencies
use
directed
to
all
educational
terminating financial
Title IX.
20 U.S.C.
1682.
The
agency responsible for
administering Title IX
is the United States Department of Education ("DED"), through
-14-
-14-
its
Office for
Civil Rights
delegated to DED the
("OCR").5
Congress expressly
authority to promulgate regulations for
determining whether an athletics program complies with
IX.
Pub.
L.
No.
93-380,
regulations specifically
106.37(c)
and 106.41.
88
Stat.
612
address athletics
Title
(1974).6
The
at 34 C.F.R.
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
participation in, be denied

of, be treated
person
or
against
in
intercollegiate,
athletics
recipient
the benefits
differently from
otherwise
be
any
from
another
discriminated
interscholastic,
club
or
intramural
offered by a recipient, and no

shall
provide
any
such
athletics separately on such basis.

(b) Separate teams.
______________
Notwithstanding
the requirements of paragraph (a) of this
____________________
5.
Agency
responsibility for
shifted from the Department
administration
of
Title
IX
of Health, Education and Welfare
("HEW") to DED when HEW split into two agencies,

Department of Health and Human Services.
DED and the
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
period that athletics
the
United
had not realized until the
is the single most
States," id.
___
(citing
Cox at
Times, June 27, 1975, at 16, col. 4).
-15-15-
comment
important thing in
34,
quoting N.Y.
section,
sponsor
recipient
separate
may
teams
operate
or
for members
of
each sex where selection of such teams is

based
upon
competitive
activity
involved
However,
where
is
skill
or
a contact
a recipient
the
sport.
operates or
sponsors a team in a particular sport for

members
of
one
sponsors no
sex
but
operates
or
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
offered
to
unless the
contact sport.
part,
try-out
contact
wrestling,
major
team
sport involved
is a
sports
rugby, ice
basketball and other

or
the
For the
activity
for
purposes of this
include
boxing,
hockey, football,
sports the
of
which
purpose
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

sexes.
In
determining
opportunities are
of both
whether
equal
available the Director
will consider, among other factors:

(1)
and
Whether the selection of sports
levels
accommodate
of
competition
the interests
effectively
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
facilities and services;
(10) Publicity.
and dining
-16-16-
In
the
institution's failure
under
Title IX.
first
appeal,
effectively
this
court
to accommodate
106.41(c)(1) is sufficient

________
to establish a
held
both
that
an
genders
violation of
In 1978, several years
regulations,
the
OCR published
purpose of which was
a proposed
programs.
provides a means to
equal opportunity
forth
at
to provide equal opportunities
in
particular, this Policy Interpretation
requirements of
106.37(c)
with the
the regulation which
and 106.41(c)]."
are set
44 Fed. Reg.
After considering a large number of public comments,
published the
71,413-71,423
other
obligations of federal
assess an institution's compliance
at [34 C.F.R.
71,415.
OCR
"In
"Policy Interpretation,"
to clarify the
aid recipients under Title IX
athletics
after the promulgation of the
areas,
Accommodation"
final Policy
Interpretation.
(1979).
While
this
litigation
section,
the Policy
which
focuses
44 Fed.
Reg.
Interpretation covers
on
interprets
the
"Effective
34
C.F.R.
106.41(c)(1), the first of the non-exhaustive list of ten factors
to
be
considered
opportunities
are
in
determining
available
Interpretation establishes
and factors
C.F.R.
to
whether
both
a three-part
genders.
test, a
to be considered in determining
106.41(c)(1).
At
issue in this
-17-17-
equal
athletics
The
Policy
two-part test,
compliance under 34
appeal is
the proper
interpretation of
the first
of these, the
so-called three-part
test,7 which inquires as follows:
(1)
Whether
intercollegiate
female students are
substantially
level
for male and
provided in
proportionate
numbers
to
their
respective enrollments; or
(2)
Where
the
have been and are

intercollegiate
institution
can
members of
one sex
underrepresented among
athletes,
show
continuing practice
whether
history
the
and
of program expansion
which is demonstrably
responsive to
developing interest and abilities
the
of the
members of that sex; or

(3)
are
Where
the
members of
underrepresented
intercollegiate
athletes,
one sex
among
and
the
institution
practice
that
cannot
of
cited
show
program
above,
demonstrated
expansion such
whether
that
continuing
the
it
can
interests
as
be
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
maintains
a 13.01%
intercollegiate
cannot gain
Supp.
at
district
the protection
acknowledging that
expansion,"
disparity
athletics
211.
the
court
Nor
did
____________________
that,
"because
between female
and
female
of prong
Brown
Brown "has
district
held
participation
in
enrollment,
it
Cohen III, 879

_________
F.
student
one."
satisfy
prong
two.
an impressive history
_______
court
found
that
Brown
Brown
While
of program
failed
to
7.
For clarification, we note
part of this three-part

Prong
one is
also
that the cases refer
test as a "prong" or
called the
to each
a "benchmark."
"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.
___
Brown had
As to prong
not "fully
_____
three, the district
and effectively accommodated
and ability of the underrepresented sex
to provide
levels
equal
court found that
opportunity in
the
the interest
'to the extent necessary
selection of
sports
and
of competition available to members of both sexes.'"
Id.
___
(quoting the Policy Interpretation, 44 Fed. Reg. at 71,417).
On January
Memorandum,"
which does
16, 1996,
DED released
not change
a "Clarification
the existing
standards for
compliance,
but
guidelines for
which
does
provide
further
assessing compliance under
The Clarification Memorandum
how institutions may meet
information
the three-part
and
test.
contains many examples illustrating
each prong of the three-part
explains how participation opportunities
test and
are to be counted under
Title IX.
The district court found that Brown predetermines the
approximate
women,
but
number of
varsity
and, thus, that "the
available athletic
slots
positions available
concept of any
does not
-19-19-
to men
and
measure of unfilled
comport with
reality."
Cohen III,
_________
879
concluded
that
F.
Supp.
at 203
intercollegiate
real opportunities,
not illusory
n.36.
The
district
athletics opportunities
ones, and therefore
measured by counting actual participants."

______ ____________
Id. at 204
___
court
"means
should be
(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.
("Title VI").8
See Cannon,
___ ______
441 U.S. at
2000d
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
underpinnings.
and
Title
VI
share
See Jeffrey H. Orleans,

___
Equal Athletic Opportunities For Women,

_______________________________________
the
same
constitutional
An End To The Odyssey:

______________________
3 Duke J.
Gender L.
&
Pol'y 131, 133-34 (1996).
Although the statute itself provides
beyond the termination
determined
that
private
right of
damages
are
Franklin
________
Title
for no remedies
of federal funding, the Supreme Court has
IX
action,
available for
is enforceable
Cannon, 441
______
an
through
U.S.
at 703,
action brought
v. Gwinnett County Pub. Sch., 503 U.S.

__________________________
under
an
implied
and
that
Title IX,
60, 76 (1992).
The right to
injunctive relief
under Title IX
appears to
been impliedly accepted by the Supreme Court in Franklin.

________
64-66, 71-73.
In addition, a majority of the
have
Id. at
___
Court in Guardians
_________
____________________
8.
Title VI
color, or
prohibits discrimination on the
national origin in
basis of race,
institutions benefitting
federal funds.
-20-20-
from
Ass'n v. Civil Serv. Comm'n,

_____
___________________
injunctive
relief and other
463 U.S. 582
(1983), agreed
equitable remedies
that
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
their choice, to
schools of
develop the skills they
want, and to apply those

knowledge
the
that they
skills with the
will
have
fair
chance to secure the jobs of their choice

with equal pay for equal work.
118
Cong.
Rec.
5808
(1972)
in Haffer, 524 F. Supp. at 541).

__ ______
(remarks
of
Sen. Bayh)
(quoted
______
III.
III.
In Cohen II, a panel of this court squarely rejected

_________
Brown's constitutional
and statutory
challenges
Interpretation's three-part test, upholding the
interpretation
of
the
Title
IX
to the
Policy
district court's
framework
applicable
to
intercollegiate athletics, Cohen II, 991 F.2d at 899-902, as well

________
as
its grant
of
preliminary
plaintiffs, id. at
___
906-07.
substantially the
same legal
raised
is
"no
injunction
in
Despite the fact
arguments in
favor
that it
of
the
presents
this appeal as
were
and decided in the prior appeal, Brown asserts that there
impediment"
decided issues.
to this
court's
plenary
review
of these
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.
et al.,
Moore's
(hereinafter
Federal
"Moore").
Practice
"The doctrine
See 1B
___
James W. Moore
0.404[1]
(2d
of the
law of
ed.
1993)
the case
directs that a decision of an appellate court on an issue of law,
unless
vacated
or
set
aside, governs
subsequent
stages of
thereafter
on any further appeal."
Walbrook Ins. Co.,

__________________
United States
_____________
denied,
______
502
41 F.3d
U.S. 862
necessarily
(1991)).
and decided
inferred
Commercial Union Ins. Co., 41

_________________________
dispose
nisi
____
during
all
prius court
_____
and
Commercial Union Ins. Co. v.

_________________________
764, 769
The
of the
The
law of the case
actually considered
0.404[10]).
in the
issue
(1st. Cir.
1994) (citing
v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert.

_______________
_____
"constitutes the
were
litigation
the
on such issues of
by the
from
the
mandate
law as were
appellate court,
disposition
on
or as
appeal."
F.3d at 770 (citing 1B Moore
doctrine requires
case in
reviewing court's
a trial court
accordance with
the
on remand
at
to
appellate court's
mandate by implementing "'both
mandate, taking
into account
the letter and the spirit
the appellate court's
of the
opinion and
the circumstances it embraces,'" United States v. Connell, 6 F.3d

_____________
_______
27,
30 (1st Cir. 1993)
F.2d 72, 76 (3d
(quoting United States

_____________
Cir. 1991)), and binds newly
v. Kikumura, 947
________
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
to the
law of
the case
doctrine, we have
circumstances in which they apply are
rare.
there are exceptions
emphasized that
As have a number of
other circuits, we have determined that issues decided on
should
not be
reopened "'unless
substantially
the
the evidence
subsequent
trial
was
since
made a contrary decision of law applicable to such issues,
or the decision was
different, controlling
on a
appeal
authority
clearly erroneous and would work
has
a manifest
injustice.'"
Rivera-Martinez, 931
_______________
Murtha,
______
F.2d 428,
377
432
F.2d at 151 (quoting White v.

_____
(5th Cir.
1967))
(other citations
omitted).
Brown's
argument
that
decision in Adarand Constr., Inc.

_____________________
Ct.
2097
(1995)
the Supreme
Court's
recent
v. Pena, --- U.S. ---,

____
115 S.
("Adarand"), controls
_______
this
case
necessarily
presumes that Adarand constitutes a contrary intervening decision

_______
by
controlling
authority
validity of Cohen II; (ii)

________
on
point
that
(i)
undermines
compels us to depart from the
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
banc opinions
____
49 F.3d
exception" to
Supreme Court
of this court, or statutory
at 834.
opinions, en
__
overrulings.
Irving,
______
We have also recognized that this exception may
apply "in
those rare situations where
although
not
directly
controlling,
-23-23-
newly emergent authority,
nevertheless
offers
convincing reason for believing that the
of
the neoteric
developments, would
earlier panel, in light
change
its course."
Id.
___
(internal quotation marks and citation omitted).
The
policy
and
law of the case doctrine is a prudential rule of
practice,
reconsideration []or
rather
than
a limitation
Rivera-Martinez, 931 F.2d at 150-51.

_______________
the
doctrine
requires
rigid
as
"an
compliance."
Nevertheless,
absolute
on a federal
bar
court's power."
that
invariably
Northeast Utils. Serv. Co.

____________________________
the doctrine
must be "treated respectfully and,
to
Thus, we have not construed
inflexible straitjacket
Federal Energy Regulatory Comm'n,

__________________________________
1995).
"an
55 F.3d
v.
686, 688
(1st Cir.
serves important
goals and
in the absence of exceptional
circumstances, applied according to its tenor."
Rivera-Martinez,
_______________
931
that only
F.2d at
151.
Accordingly, we
exceptional circumstances can
adherence
to
the doctrine
circumscribed.
Martinez,
________
See
___
id.;
___
836 F.2d 684,
there may be occasions
have held
overcome the
and
these
see also
___ ____
687 n.2 (1st
the iron grip of stare decisis.

_____ _______
special justification.'")
But
interests served
exceptions are
United States
______________
v. Reveron
_______
and should --
be sure,
loosen
any such departure 'demands
(quoting Arizona
_______
v. Rumsey,
______
467 U.S.
203, 212 (1984)).9
____________________
9.
by
narrowly
Cir. 1988) ("To
when courts can --
a few
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
exception
to
the reasons
the law
of the
that
case
follow, we
conclude that
doctrine applies
no
here and,
therefore, that Cohen II's rulings of law control the disposition
________
of this appeal.
Brown contends that stare

_____
panel
decisis does not bind this

_______
"to the previous preliminary ruling
of this Court because
it lacks the element of finality," Reply Br. at 24,
law of the case
and that the
doctrine does not prevent a court from "changing
its mind," id. at n.47.

___
We
that
conclusions and
presented
to
acknowledge
that we
holdings
have
repeatedly emphasized
regarding the
merits of
issues
on appeal from a grant of a preliminary injunction are
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).
arises when we are asked
court's grant of a
The concern informing
this caveat
to rule on the propriety of
a district
preliminary injunction (or otherwise issue
preliminary ruling) without benefit of full
argument and a well-
____________________
"has been said to lie half
way between stare decisis and res

_____ _______
___
judicata,"
________
0.404[1] n.3
marks
1B Moore
and citation
courts today,
resembles
the
the
0.404[1].
at
omitted).
law of
doctrine of
Both
the
As
(internal quotation
applied
in the
federal
more
closely
case doctrine
stare decisis.
_____ _______
doctrines reflect
1B Moore
concerns that
at
have long
been recognized as fundamentally important to the rule of law

-- e.g., stability, predictability, and respect
authority --
and both doctrines
are applied
for judicial
"with more
less rigidity depending on which interest is served."

II-2.
-25-25-
or
Id. at
___
developed record.
prior panel
to
In
this case, however, the record
was "sufficiently developed and
shape the
proper
legal matrix
before the
the facts necessary
[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'
injunction
in Cohen I,
_______
the district court
attention
to the
parties' prospects
haul;" (ii) "plainly visualized
legal
motion
for
preliminary
(i) "paid meticulous
for success over
the long
both the factual intricacies and
complexities that characterize Title IX litigation;" (iii)
"held a lengthy adversary hearing and reviewed voluminous written
submissions;"
and
(iv)
accommodation test."
district
court noted
merits, "[n]othing in
undermines
879 F. Supp. at 194.
on

________
in
its opinion
after
the
three-part
Further, as the
the trial
on
the
the record before me, now fully developed,
the considered
First Circuit at the
"correctly focused
legal
framework established
preliminary injunction stage."
by
the
Cohen III,
__________
Brown offers remarkably little in the way of analysis
or authority to support its blithe contention that we are free to
disregard
argues
Cohen II in disposing
________
as if
the
prior
panel
of this appeal.
had
statutory
interpretation questions
did)
as if
and
the
not
decided
the
presented (which
district court's
-26-26-
Indeed, Brown
liability
precise
it clearly
analysis were
contrary
not).
to the law enunciated in
Finding Brown's
decline the invitation
precedent
established
erroneous; it
is
Cohen II (which it clearly is

________
bare assertions to
be unpersuasive,
to this court to "change its
by
the law
the
of
prior
panel
this case
and
is
mind."
not
the law
we
The
clearly
of
this
circuit.
IV.
IV.
Brown
and misapplied
that the
test
contends that the
district court misconstrued
the three-part test.
Specifically, Brown argues
district court's interpretation and
application of the
is irreconcilable with the statute, the regulation, and the
agency's interpretation of the law, and effectively renders Title
IX
an "affirmative
treatment
for women
action statute"
by
that mandates
imposing quotas
in
excess of
relative interests and abilities in athletics.
the alternative,
that if
the test, then the
the district court
preferential
women's
Brown asserts, in
properly construed
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,"
not an affirmative action case.
and "quota,"
this is
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.
connotations
meaning
have
as a matter
is more
or
specific
circumscribed.
(as in
by a
group-based
---, 115
strict
a matter of
a program
implemented by
or
preferences
scrutiny a challenge to a
to remedy
a governmental
institution), by
or
2097 (1995)
law, its
action cases
voluntary10 undertaking
numerical
for achieving those goals.
S. Ct.
have different
True affirmative
private employer
specific timetable
U.S.
of politics, as
historically involved a
discrimination
body,
While "affirmative action" may
goals,
means of
and
See Adarand, --___ _______
(remanding for
review under
federal statute establishing a
government-wide goal for awarding to minority businesses not less
than
5%
of
the
subcontracts for
total
value
each fiscal
of
all
prime
contracts
year); Metro Broadcasting
and
v. FCC,
__________________
___
____________________
10.
Cases and
involuntarily
pursuant
commentators sometimes treat

implemented
to a
affirmative
action
Paradise, 480
________
one-white"
consent
plans
decree or
cases.
U.S. 149
-a
cases involving
e.g.,
plans
contempt order
See, e.g.,
___ ____
(1987) (upholding
adopted
--
as
United States
______________
v.
a "one-black-for-
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
the union a goal

for the
district court's
imposition on
for racial minority membership as
union's contempt
of the court's
earlier orders
cease racially discriminatory admissions practices).
-28-28-
a remedy
to
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
minority
the city's
construction dollars be
subcontractors
on
an
annual
paid to
basis);
racial
Johnson
_______
v.
Transportation Agency, 480 U.S. 616 (1986) (upholding a temporary

_____________________
program authorizing a county
agency to consider sex and
factors in making promotions in order to
measurable
improvement
in
the
race as
achieve a statistically
representation
of
women
and
minorities in major
job classifications in
historically underrepresented); Wygant

______
476
U.S.
faculty
267
(1986)
(striking
lay-off provision
down
which they had
been
v. Jackson Bd. of Educ.,

_____________________
collective-bargaining
requiring preferential
treatment for
certain racial minorities); Fullilove

_________
v. Klutznick, 448 U.S. 448

_________
(1980)
requiring state
(upholding a
recipients of federal
funds
for procuring
federal program
public works
goods and
grants to set
services from
blacks
commensurate
places
of blacks
with the
in a
among
new
set aside for
training program
skilled workers
percentage of blacks
of
U.S. 193 (1979)
collective bargaining agreement that
half the
percentage
aside 10%
minority business
enterprises); United Steelworkers v. Weber, 443

____________________
_____
(upholding a
and local
at
until
the
the plant
was
in the
local labor
force);
Regents of the Univ. of Cal. v.

_______________________________
(1978) (striking down a
Bakke, 438
_____
U.S. 265
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
anti-discrimination statute, Title VI.
regime at issue
relevant
mandates
in this case
regulation,
gender-based
and
the
No aspect of the Title IX
-- inclusive of
pertinent
preferences
after another
or
the statute,
agency
documents
quotas,
or
the
--
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
that
significant
indicate the
school
gender-based
existence of
desegregation
statistical
discrimination.
cases,
the
inference
disparity
Consistent
question
of
may
with the
substantial
proportionality under the Policy Interpretation's three-part test
____________________
11.
As previously noted, Title IX itself specifies only that
the statute shall not

preferential or
be interpreted to require gender-based

_______
disparate treatment.
20 U.S.C.
However, although Congress could easily
1681(b).
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
703(a)
(d)
Title
and
interpretation
conscious
of
VII,
sections
action
at variance with
rejected") (internal
omitted); id.
___
upon
the
affirmative
completely
must be
of
discrimination
which
that "[t]he
and
concluding
that
forbade
would
bring
the purpose of
all
"an
race-
an
end
the statute and

and citations
703(j) of
Title IX was
in
that
about
quotation marks
at 205-06 (construing
1681(b) of
contained
Title VII,
based, and concluding
natural inference is that Congress
chose not to
forbid all voluntary race-conscious affirmative action").

In
affirmative
addition,
action
to
remedial
overcome
discrimination are permitted under

34
C.F.R.
action
the
and
effects
voluntary
of
gender
the Title IX regulations,
106.3, and by the Policy Interpretation, 44 Fed.
Reg. at 71,416.
-30-30-
is
merely
conclusion;
the
See, e.g.,
___ ____
402 U.S.
proportionality
whether an
for
analysis,
a rebuttable presumption,
requirement.
Educ.,
_____
starting point
1,
test
25
rather than
the
rather than an inflexible
Swann v. Charlotte-Mecklenburg Bd. of

_____
_____________________________
(1971).
is but
one
institution's athletics
In
short,
aspect
the
of the
substantial
inquiry
program complies
into
with Title
IX.
Also consistent with the school
the
substantial proportionality
test
desegregation cases,
of prong
one is
applied
under the Title IX framework, not mechanically, but case-by-case,
in
a fact-specific
regimes, Title
manner.
IX neither
As with
other anti-discrimination
mandates a finding
of discrimination
based solely upon a gender-based statistical disparity, see Cohen

___ _____
II,
__
991 F.2d
measures.
2038,
at
895, nor
prohibits gender-conscious
remedial
See Missouri v. Jenkins, --- U.S. ---, ---, 115 S. Ct.

___ ________
_______
2048
(1995)
permissibility
of
(acknowledging
court-ordered, race-conscious
designed to
restore victims
they
have
would
the
occupied
of discrimination to
in
the absence
of
constitutional
remedial plans
the positions
such
conduct);
Fullilove, 448 U.S. at

_________
federal
decree
federal
court to
also
483 (recognizing that the authority
incorporate
extends to
statutory
anti-discrimination
conscious remedies
(holding that Title
racial criteria
laws
violations
have
may be appropriate);
been
into a
of a
remedial
and that,
where
violated,
race-
Weber, 443 U.S.

_____
at 197
VII does not prohibit private employers from
-31-31-
voluntarily
"manifest
implementing
racial
categories");
race-conscious
imbalances
McDaniel
________
v.
in
measures to
traditionally
Barresi,
_______
402
eliminate
segregated
U.S.
39,
41
job
(1971)
(recognizing that measures required to remedy race discrimination
"will almost invariably require"
and that "[a]ny other
race-conscious classifications,
approach would freeze the status
quo that
is the very target of all desegregation processes").
Another
affirmative
important distinction between
action cases
to
is
that the
accommodate
fully
this case and
district court's
and
remedy
requiring
Brown
effectively
the
athletics
interests and abilities of its women students does not
raise the concerns underlying
particularized
affirmative
factual
action
plans.
the Supreme Court's requirement of
predicate
In
to
justify
voluntary
equal
protection
reviewing
challenges to such plans, the Court is concerned
bodies are
reaching out
to implement race-
that government
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
prima
276, on
the basis
facie case
Croson, 488 U.S. at

______
of
of facts
a constitutional
insufficient to support
or statutory
500, to the benefit of
of past discrimination, see id. at

___ ___
Accordingly,
the Court
affirmative
action plans
has
violation,
unidentified victims
469; Wygant, 476 U.S. at 276.

______
taken the
cannot
position that
voluntary
be constitutionally
justified
absent
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,
amorphous
a basis
for imposing
Wygant, 476 U.S. at 276.
a racially
is too
classified remedy,"
______
From a
is
altogether
ordered by
have
constitutional standpoint, the case before us
different.
an Article
before it
that
that were
factual problem
compelled to
raise the
specific
subject to the
statute; based
upon
Federal Rules of
presented in affirmative action
or gender-conscious remedial measures
multiple
cause of
a duly
defendants
had
indicia of
findings of
Evidence.
that race-
are appropriate?"
reliability
and
The
cases is, "Does
the evidence support a finding of discrimination such
these
was
against a certified class of women in violation of
federal anti-discrimination
fact
standing to
relief
purpose of providing relief upon
determination
discriminated
gender-conscious
III court, constitutionally
litigants with
action alleged; for the
adjudicated
Here,
We find
specificity to
be
sufficient to answer that question in the affirmative.
From
the
mere fact
that
a remedy
judicial determination of discrimination is
flowing
from a
gender-conscious, it
does not follow that the remedy constitutes "affirmative action."
Nor
does a
"reverse discrimination" claim
anti-discrimination statute
is
conscious relief may adversely
has not
enforced.
arise every
time an
While
gender-
some
impact one gender -- a
been demonstrated in this
-33-33-
case -- that alone
fact that
would not
make the relief "affirmative
relief
action" or the consequence
"reverse discrimination."
gender-conscious
remedies
To the
are
constitutionally permissible under a
regime,
although such
equal protection review.
-,
115
S. Ct.
2475,
antidiscrimination
laws
remedial
of that
contrary, race-
and
appropriate
and
both
federal anti-discrimination
measures are
still subject
to
See Miller v. Johnson, --- U.S. ---, -___ ______

_______
2491
(1995)
cannot
("compliance
justify race-based
with
federal
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.
remand,
the district court's
liability analysis
On
explicitly and
faithfully adhered to Cohen II's mandate, and

________
we are bound to do
the
absent one
same at
this stage
of
the litigation,
exceptional circumstances discussed supra.

_____
questions presented
regarding the
Because the
proper interpretation
of the
precise
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
expressly accepted Cohen II's

________
analysis,
the
district
court
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.

___
have reviewed
since
a Title
IX claim
Cohen II was decided is in

________
the Title
IX regime as it
Indeed, every circuit court to
of discrimination in
athletics
accord with its explication of
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

______
__________________
denied, --______
U.S. ---, 115
Univ. of Pa., 7
_____________
F.3d 332
S. Ct. 938
Cir. 1994), cert.

_____
(1995); Favia
_____
(3d Cir. 1993);
Roberts v.
_______
v. Indiana
_______
Colorado
________
State Bd. of Agric., 998 F.2d

___________________
824 (10th Cir.), cert. denied, 510

_____ ______
U.S. 1004 (1993).
Cohen II
_________
entitled
held
to substantial
that
the
Policy Interpretation
deference because
it is
the enforcing
agency's "considered interpretation of the regulation."
at
896-97.
Brown argues
that
the
district
is
991 F.2d
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
because
the
worthy
candidate for
deference,"
"the urged interpretation
Constitution,
materials and
the
practices,
Statute,
existing
Reply Br.
is illogical,
the
Regulation,
analogous
at
15,
conflicts with
other Agency
caselaw
and,
in
-35-35-
addition, is bad
policy," id.
___
We
characterization
of the Policy
Interpretation and its challenge
to
the
substantial
deference
reject Brown's
accorded that
kitchen-sink
document
by
the
district court.
The Policy Interpretation represents
agency's
interpretation
of
the
the responsible
intercollegiate
athletics
provisions of Title IX and its implementing regulations.
Reg.
at
Congress
71,413.
has
It
is
expressly
well
settled that,
delegated to
"elucidate a specific provision of a
resulting
regulations
should
unless they are arbitrary,
the statute."
regulations is
U.S.
"'that
accorded
power to
"controlling weight
Natural Resources Defense

_________________________
844 (1984).
agency's
entitled to
the
capricious, or manifestly contrary to
837,
an
agency
as here,
statute by regulation," the
Chevron U.S.A. Inc. v.

___________________
Council, Inc., 467

______________
established
be
an
where,
44 Fed.
It
construction
is also
of
substantial deference.'"
its
Payne, 476 U.S. 926, 939

_____
own
Martin v.
______
Occupational Safety and Health Review Comm'n, 499 U.S. 144,

_____________________________________________
(1991) (quoting Lyng v.

____
well
150
(1986)) (other
citation
omitted).
As
the
Supreme
Court
has
explained,
"[b]ecause applying an agency's regulation to complex or changing
circumstances
policymaking
calls
upon
the
prerogatives,
authoritatively to
agency's
we
unique
presume
that
interpret its own regulations
of the agency's delegated lawmaking powers."
151 (citation omitted).
-36-36-
expertise
the
and
power
is a component
Martin, 499 U.S. at

______
Applying
applicable
these
regulation, 34 C.F.R.
weight, 991 F.2d at 895;
substantial deference,
agency's rendition
Horner,
______
id. at
___
896-97; and that,
"[b]ecause the
a plausible, if
not inevitable,
we are obligated to enforce
at 274-75;
Indiana Univ. of Pa., 812 F.

____________________
F.3d
106.41, deserves controlling
the regulation
to its tenor," id. at 899 (citations omitted).

___
43 F.3d
that the
that the Policy Interpretation warrants
stands upon
reading of Title IX,
according
principles, Cohen II held

_________
332 (3d Cir. 1993).
Kelley, 35
______
F.3d at
270;
Accord
______
Favia v.
_____
Supp. 578, 584 (W.D. Pa.), aff'd, 7

_____
On remand, the district court properly
applied the legal framework elucidated in Cohen II and explicitly

________
followed this court's mandate
the
regulation
Interpretation.
Kelley,
______
the
IX").
and
in according controlling weight to
substantial
Cohen III,
_________
879
deference
F.
to
Supp. at
the
197-99;
Policy
accord
______
35 F.3d at 272 (holding that "neither the regulation nor
policy interpretation
run afoul
of the
dictates
of Title
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
for
purposes
of
the
noted, the
three-part
district court
test,
the
held that,
intercollegiate
athletics
are
participation opportunities offered
properly
participants
measured
by
counting
on intercollegiate teams.
the
by an institution
number
of
actual
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
intercollegiate
sports, under
teams will not
in those
instances where
excluded
Id. at
___
club
participation
n.1.
Interpretation, "club
intercollegiate teams except
Accordingly,
teams
and
from
teams" and, therefore,
the
the
in varsity
district court
definition
of
from the calculation of
club teams regularly
participated in
varsity

_________
The
participation
definition.
sports
opportunities, because the evidence was inadequate
that the
competition.
club
they regularly participate
varsity
"intercollegiate
between
the Policy
be considered to be
competition."
to show
distinguishes
district
opportunities
court's
comports
definition
with
See Clarification Memorandum at
the
of
athletics
agency's
own
2 ("In determining
___
participation opportunities,
athletes
OCR
participating in the
error in the district
counts the
number
athletic program.").
of
actual
We find no
court's definition and calculation of
the
intercollegiate athletics participation opportunities afforded to
Brown students, and no error
disparity
between
the
in the court's finding of a
percentage
of
women
13.01%
participating
____________________
12.
Application of the Policy Interpretation
to
intercollegiate
athletics,
however.
is not limited
The
Policy
Interpretation states that "its general principles will often

apply
to
club,
intramural,
and
interscholastic
programs, which are also covered by the regulation."

Reg. at 71,413.
-38-38-
athletic
44 Fed.
in
intercollegiate varsity athletics at
Brown and the percentage of
women in Brown's undergraduate student body.
D.
D.
Brown
accommodates
both
contends that
genders and
an
athletics
complies
with
program
Title IX
equally
if
it
accommodates the relative interests and abilities of its male and

________
female students.
This
"relative interests" approach posits that
an
institution satisfies prong
meeting
the
gender
only
interests
to
abilities of
and
the extent
three of the
abilities
that
the overrepresented
it
three-part test by
of the
meets
gender.13
underrepresented
the interests
See
___
Cohen II,
________
and
991
F.2d at 899.
Brown
imposes
upon
maintains that
universities
the
the district
court's decision
obligation
to
engage
in
preferential treatment for women by requiring quotas in excess of
women's relative interests
three, Brown asserts that
the word
and treat
"fully" "requires
and abilities.
With respect to prong
the district court's interpretation of
universities to favor
them better than men's
[teams]. . . .
women's teams
forces them to
____________________
13.
We
note
that
Brown
argument under both

Brown
argued
presses
prong one
that,
"in
its
relative
interests
and prong three.
order
to
succeed on
At
trial,
prong
one,
plaintiffs bear the burden of proving that the percentage

women
among
varsity
athletes
proportionate
to the
interested in
__________ __
participating
_____________
III,
___
879 F.
Supp. at
percentage
205.
is
of
not
women
in varsity
__ _______
At the
substantially
among
athletics."
_________
Id. at n.41.
___
-39-39-
students
________
Cohen
_____
preliminary injunction
stage, Brown propounded the same relative interests

under prong three.
of
argument
eliminate or cap men's teams.
impose
athletic
abilities."
in
prior
panel
relative
interests
and
considered
and
rejected
Brown's
observing that "Brown reads the 'full' out of the duty
to accommodate 'fully and
899.
excess of
Appellant's Br. at 55.
The
approach,
quotas
. . . [and] forces universities to
effectively.'"
Cohen II, 991

________
Under Cohen II's controlling interpretation,

_________
"demands not
accommodation.
merely some
accommodation, but full
F.2d at
prong three
and effective
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
accommodation is "simply
at 208.
that
We agree
Brown's
scrutiny on either legal
at
900,
remedial
because
purposes
not the law."
with the prior
relative
it
of
of
full
and
Cohen III,
_________
panel and the
interests
approach
effective
879 F. Supp.
district court
"cannot
withstand
or policy grounds," Cohen II,

________
"disadvantages women
Title
IX by
and
limiting
991 F.2d
undermines
required
the
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
imposing
a gender-based
requires numerical proportionality, thus

________
quota
scheme in
contravention of
the
statute.
20
This argument
U.S.C.
1681(b)
rests, in part, upon Brown's
as
categorical
consideration of gender parity.
Nothing
this
contained
section
require
any
reading of
proscription
against
Section 1681(b) provides:
in subsection
shall
be
(a) of
interpreted
to
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
persons
number
of that
or
percentage
of
sex participating in or
receiving the benefits

supported
program
comparison
with
the
of any
or
federally
activity,
total
number
percentage of persons of that sex
in
or
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.
1681(b).
We
We
congressional
this
do not
think it important
concerns that inform
provision.
prohibit quotas
upon
the
Sess.
(1971),
to bear in
application of
mind, however, the
the proper interpretation of
2000e-2(j), and
in university
percentage
geographical
Cohen II's
_________
Section 1681(b) was patterned after
Title VII, 42 U.S.C.
to
question
of
community.
reprinted
_________
See H.R.
___
in
__
1972
-41-41-
was specifically designed
admissions and
individuals
703(j) of
of
one
Rep. No. 554,
U.S.C.C.A.N.
hiring, based
gender
in
92d Cong., 1st
2462,
2590-92
(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
Thus,
history
the
legislative
underscored language defines what
strongly
Rep. Green).
suggests
that
the
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
entirely
any event, the
consistent with
require preferential
_______
Neither
the Policy
district
court's
three-part test is,
1681(b)
or disparate
because the
treatment for
Interpretation's
interpretation
of
three-part
it,
on its face,
test does
either gender.
test, nor
mandates
________
applicable
balance."
regulation
it
achieves
creates a
with Title IX and the
such
statistical
Kelley, 35 F.3d at 271.

______
The test
as applied
when
the
statistical
balancing; "[r]ather, the policy interpretation merely
presumption that a school is in compliance
not
by the
is also entirely consistent
prior panel
and by the
with
1681(b)
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
institution's
student constituency,
-42-42-
composition of an educational
on
the one
hand, and
its
athletic programs, on
panel
then
requires
the other hand."
carefully
Title IX
delineated
plaintiff
between the gender composition
and
its
athletic program,
991 F.2d
the burden
to
at 895.
of
show, not
proof,
only
of the institution's student body
thereby
proving
that there
id. at 901,
___
element -- unmet interest
-- is present," id., meaning

___
accommodated
gender
has
not
by the institution's
fails
but also
been
fully
"that a
and
is
an
second
that the
effectively
present athletic program, id.

___
at 902 (citing 44 Fed. Reg. at 71,418).
meets the burden of
which
"disparity
underrepresented gender,"
underrepresented
The
Only where the plaintiff
proof on these elements and

___
the institution
to show as an affirmative defense a history and continuing
practice
of program
expansion responsive
to the
interests and
abilities
of
the
established.
underrepresented
gender
will
liability
be
Surely this is a far cry from a one-step imposition
of a gender-based quota.
Brown simply ignores the fact that it
accommodate
fully
the
interests
and
is required to
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
failed
disparity with
(under
prong
practice of expansion
respect
two)
to
to these
show
opportunities, and
history and
of opportunities for
has
continuing
the underrepresented
-43-43-
gender.
Brown's interpretation
and distorts the three-part
conflates prongs one
test by reducing it to
and three
an abstract,
mechanical determination of strict numerical proportionality.
short,
In
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
Title IX and its
implementing regulations protect the class
whose special benefit the
U.S. at 694.
this case, women.
statute was enacted.
It is women and not men
See
___
for
Cannon, 441
______
who have historically and
who continue to be underrepresented in sports, not only at Brown,
but
at universities nationwide.
Bethlehem, Pa.,
_______________
998
although Title IX and
girls,
F.2d
168,
See Williams v. School Dist. of

___ ________
_______________
175
(1993)
its regulations apply equally to
"it would require blinders
boys' athletic programs
that,
boys and
to ignore that the motivation
for promulgation of the regulation on athletics
emphasis on
(observing
was the historic
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
shortfall
and of
itself,
excuse
opportunities for
F.2d
Instead,
at
899.
the
law
-44-44-
in
the
gender."
requires
provision
of
Cohen II, 991

_________
that,
absent
demonstration
of
continuing
underrepresented gender
an
institution must
program
expansion
under prong two of
either
for
the
the three-part test,
provide athletics
opportunities in
proportion to the gender composition of the student body so as to
satisfy
prong
one,
or
abilities of athletes of
three.
Id.
___
fully
accommodate
the
interests
the underrepresented gender under prong
In other words,
If
school,
like
Brown,
eschews the
first two benchmarks of the accommodation

test, electing to stray
proportionality
and
from substantial
failing
to
march
uninterruptedly in the direction of equal

athletic opportunity, it must comply with
the third
and
benchmark.
To
do
so,
the
school
must
fully
and
effectively
accommodate the underrepresented gender's

interests
and
abilities,
requires it to give
even if
that
gender (in this case, women) what amounts

to
larger
slice
of
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
based
quota scheme.
interests
district
approach
In
to
our
the
view,
is
three-part test,
court's interpretation,
and purpose of the test and of
it
gender-
Brown's
rather
relative
than
the
that contravenes
the language
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
standard
for
so
Title
as
IX
to
incorporate
compliance.
an
entirely
different
This
relative
interests
-45-45-
standard would entrench
and fix by
based disparity in athletics
law the significant
gender-
opportunities found by the district
court to exist at Brown, a finding we have held to be not clearly
erroneous.
According
interpretation of
to
Brown's
relative
interests
the equal accommodation principle, the gender-
based disparity in athletics participation opportunities at Brown
is due to a lack
rather than
of interest on the part of its female students,
to
discrimination, and
any attempt
disparity is, by definition, an unlawful quota.
to remedy
This approach is
entirely contrary to "Congress's unmistakably clear mandate
educational institutions
not use
federal
gender-based discrimination," id. at

___
impossible
to
effectuate
the
monies to
that
perpetuate
907, and makes it virtually
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
that, while Title VII
job openings have
IX
the
vast
to Title
VII, noting
"seeks to determine whether gender-neutral
been filled without regard
. . . was designed to
unlike
the analogy
majority
to gender[,] Title
address the reality that sports teams,
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
patterned after a
should
be
genders,
Title VII provision
applied
intercollegiate
to
Title
athletics
program
as Brown contends.
importation
from the fact that
of Title VII
have explicitly limited the
IX
1681(b) was
that Title VII
analysis
equally
While this court
standards into
of
standards
whether
accommodates
an
both
has approved the
Title IX
analysis, we
crossover to the employment context.
See
___
Cohen II, 991 F.2d

________
P.R., 864 F.2d 881, 897

____
at 902 (citing
Lipsett v. University of
_______
_____________
(1st Cir. 1988)); but see Brown

___ ___ _____
Sexy and Safer Prods., Inc.,

____________________________
68 F.3d 525,
540 (1st
v. Hot,
____
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

_________
Title
IX,
which
merely
conditions
educational institutions, are
of Title VII, which
at 902
(citation
peremptory,"
and purpose of
government
grants
substantially different from those
sets basic employment standards."
omitted).
Title IX
is
to
"[W]hereas
Title VII
"largely aspirational,"
991 F.2d
is
largely
and thus,
"loosely laced buskin."
521
Id.; see also North Haven,

___ ___ ____ ___________
(directing that Title IX must
456 U.S. at
be accorded "a sweep as broad
as its language").
-47-47-
It is imperative to recognize that athletics presents
distinctly different situation
and
requires a
different
existence vel non of

___ ___
from admissions and employment
analysis in
discrimination.
order
to determine
While the Title
the
IX regime
permits institutions to maintain gender-segregated teams, the law

_______
does
not require
that
student-athletes attending
receiving federal funds must
nor
does the
law require
compete on gender-segregated teams;
that institutions
gender-integrated athletics programs.14
IX allows
institutions
provide completely
To the extent that Title
institutions to maintain single-sex
teams and gender-
____________________
14.
See
___
operate or
where
34 C.F.R.
106.41(b)
sponsor separate
selection for
such
(1995) ("[A]
teams for
teams is
recipient may
___
members of
based upon
each sex
competitive
skill
or
the
(emphasis
activity
added).
involved
Nor
do
is
the
contact
sport.")
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
sponsors no such team for members
or
of the
other sex, and athletic opportunities for

members
of that sex have previously been
limited, members of the excluded sex must

be
allowed
offered
to
try-out
unless the
for
the
team
sport involved
is a
contact sport.
Id.
___
Whether
or not
segregated teams, it
the institution
must provide "gender-blind
opportunity to its student body."

While this case presents
underrepresented
participate
apply
gender
on single-sex
where members
maintains gender-
of
equality of

________
only the example of members

seeking
teams,
the
the
opportunity
same analysis
opportunities to play on co-ed teams.
of the
to
would
gender sought
-48-48-
segregated
against
athletics
programs, men
and
women
each other for places on team rosters.
do not
compete
Accordingly, and
notwithstanding Brown's protestations to the contrary, the
VII concept
analysis
of the "qualified pool"
of equal
because women
opportunities
are not "qualified"
has no place in
for male
and female
to compete
Title
a Title IX
athletes
for positions
on
men's
teams,
"preference"
and vice-versa.
In
does not have the
equality concerns,
as it does
addition,
the
concept
of
same meaning, or
raise the same
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
analytically material
teams,
ways.
intercollegiate
from admissions
In providing
athletics programs
and employment
in
for gender-segregated
necessarily allocate
___________
opportunities separately for male and female students, and, thus,
any
inquiry into a
claim of gender
the athletics participation
those
provided
for
women.
discrimination must compare

____
opportunities provided for
For
this
reason,
and
men with
because
recruitment
of interested athletes
institution, there
only enough women
is a risk
to fill
underrepresents women, and
program
will
have
the
is at the
discretion of the
that the institution
positions in a
program that
that the smaller size
effect
participation.
-49-49-
of
will recruit
already
of the women's
discouraging
women's
In this
unique context, Title IX
that the gender-segregated allocation of
does
or
not disadvantage either gender.
preference,
merely
this
provides for
participation
"Congress itself
such
manner.
recognized
of athletics
the
the
sexes
Seventh
that addressing
comparison
resources and
in
Circuit
non-
observed,
discrimination
in
presented a unique set of problems not raised in areas
as employment
(citing
gender-conscious
between
As
Rather than create a quota
the allocation
opportunities
discriminatory
athletics
unavoidably
operates to ensure
and
academics."
Kelley,
______
35 F.3d
at
270
Sex Discrimination Regulations, Hearings Before the

________________________________________________________
Subcommittee on Post Secondary Education of the Committee on

_________________________________________________________________
Education and Labor, 94th Cong.,

___________________
152, 177, 299-300
1st Sess. at 46, 54,
(1975); 118 Cong. Rec.
125, 129,
5807 (1972) (statement
of Sen. Bayh); 117 Cong. Rec. 30,407 (1971) (same)).
In
contrast
to
the
contexts, in the athletics context,
characteristic.
IX
and
institution
fashioning
does not
admissions
gender is not an
irrelevant
its
supporting
regulations
equally and
to
upon a
teams,
provide
effectively accommodate the
equal
the fact that
and
determination that
way of
the mandate of
for both genders, despite
maintains single-sex
a remedy
must have some
an institution complies with
the
and
Courts and institutions
determining whether
Title
employment
some way
of
the institution
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
enforcement
of
required
schools
agency responsible
the
to
statute could
sponsor a
for
have
women's
program for every
men's program
and
vice
versa.
It
offered
was
not
unreasonable, however, for the
agency to
reject this course
Requiring
parallel
of action.
teams is a
rigid approach that
denies schools the flexibility to respond

to
the
men
differing athletic
was
perfectly
acceptable, therefore, for the
agency to
chart
and
women.
It
interests of
a different
enforcement
compliance
course
scheme
and adopt
that
an
measures
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
evaluation
its
compliance
of
a school's
athletic
flexibility
through
resources
in
meeting
an
allocation of
allows
schools
the
athletic
interests of their students and increases

the
those
chance that the

students
will
actual interests of
be met.
And
if
compliance
with
Title
measured through this

it
is only
given
the
that
way to
they have satisfied
is
sort of
practical
some clear
IX
to
analysis,
schools
The
proportionality contained
be
establish that
the requirements
statute.
be
of
substantial
in Benchmark 1
merely establishes such a safe harbor.
Id. (citations omitted).

___
We find no error
apply Title
VII standards
in the district court's
in its inquiry
program complies
-51-51-
refusal to
into whether
Brown's
with Title IX.
See
___
Cohen II, 991

_________
analogies where,
F.2d at 901
as
("[T]here is
in the
statutes
and regulations
district
court's application
IX milieu,
are clear.").
create a gender-based quota
C.F.R.
Title
106.41, the Policy
of
no need
We
to search for
the
controlling
conclude that
the three-part
test does
and is consistent with Title
Interpretation, and the
the
not
IX, 34
mandate of
Cohen II.
________
F.
F.
Brown has
contended throughout this
litigation that
the significant disparity in
women
at Brown is the
the level of
application
provide
result of a
interest in
of
the
athletics
athletics opportunities for men and
gender-based differential in
sports and that
three-part test
opportunities for
the district
requires
women
to
court's
universities
an extent
exceeds their relative interests and abilities in sports.
at the heart
permits
to
that
Thus,
of this litigation is the question whether Title IX
Brown to deny
its female students
equal opportunity to
participate in sports, based upon its unproven assertion that the
district court's finding of
opportunities
for
male
discrimination in Brown's
a lack of
interest on the
a significant disparity in athletics
and
female
students
reflects,
not
intercollegiate athletics program, but
part of its
unrelated to a lack of opportunities.
female students that
is
We
interested
view
than
men
Brown's
argument
that
in
participating
women
in
are
less
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
and abilities of
assert
that
athletics
its male
Title
IX
students, with great
permits institutions
based upon the premise
is (among
Title
enacted
IX was
from
to
for women
the interests
suspicion.
other things) to
in order
stereotyped
to
notions
To
provide
fewer
than for
men,
that women are less interested
than are men,
results
that it accommodates
in sports
ignore the fact
that
remedy discrimination
that
of
women's
interests
and
abilities.
Interest and ability rarely develop in a vacuum; they
evolve as a function
Interpretation
of opportunity and experience.
recognizes
participation in athletics
opportunities
that
women's
reflects women's
to participate
in sports.
The Policy
lower
rate
historical lack
See
___
44 Fed.
of
of
Reg. at
71,419 ("Participation in intercollegiate sports has historically
been
emphasized
for
men
but
not
consequence of this, participation
women.
Partially
rates of women are
as
far below
those of men.").
Moreover, the Supreme
gender-based
discrimination
generalizations" about
498,
Hogan,
_____
508
(1975).
based upon
women.
See, e.g.,
___ ____
458 U.S. 718, 725
Court has repeatedly condemned
"archaic
Schlesinger v.
___________
and overbroad
Ballard, 419 U.S.

_______
Mississippi Univ. for Women v.

_____________________________
(1982); Califano v.
________
-53-53-
Webster, 430 U.S.

_______
313, 317 (1977);
(1973).
The
Frontiero v. Richardson,
_________
__________
Court has been
statistical evidence offered
notions
about men
Oklahoma's
3.2% beer
males 18-20 years
190, 208-209
and
411 U.S. 677,
especially critical of
684-86
the use of
to prove generalized, stereotypical
women.
For
example, in
statute invidiously
the Equal Protection Clause are
that
discriminated against
of age, the Court in Craig

_____
(1976), stressed
holding
v. Boren, 429 U.S.

_____
that "the principles
embodied in
not to be rendered
inapplicable
by
statistically measured but
also id.
____ ___
at
202
shortcomings
that
loose-fitting generalities."
("statistics
exhibit
seriously
impugn
protection analysis");
id. at
___
inevitably
with
the
of
value
204 ("proving broad
is a dubious
in tension
variety
their
propositions by statistics
is
See
___
to
equal
sociological
business, and one
that
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
female applicants
applicants, that
may
undermine
regarding
to its medical
relevance
of
number
school, in comparison
"the dampening impact of
the
the small
figures
of
to male
a discriminatory rule
relating
to
actual
______
applicants").
Thus,
providing
statistical
instead
there
true
evidence
exists
measure
of
the
women's
purporting
provides only a measure
danger that,
to
interest
reflect
rather
in
women's
than
sports,
interest
of the very discrimination that
-54-54-
is and
has been the
participate in
evidence of
basis for
sports.
women's lack
Prong
interest in
three
of opportunity
requires
athletics, and
some
the Title
kind
to
of
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
interests
may determine
and
the athletic
abilities of
nondiscriminatory
students by
methods
of
their
choosing provided:
a. The processes take into
account
increasing
the
nationally
levels
of
women's
interests and abilities;

b.
determining
The
methods
interest
of
and
ability do not disadvantage the
members of
an underrepresented
sex;
c.
The
determining
account
methods
of
ability take
into
team
performance
records; and
d.
The
responsive
interests
of
methods
to
the
are
expressed
of students
capable
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,
following: (i)
any institutional
students' athletics interests

Bonnette &
Lamar Daniel,
Athletics
Investigator's
inter
_____
surveys or
alia,
____
assessments of
and abilities, see

___
Valerie M.
Department of Education,
Manual
at
22
(1990);
Title IX
(ii)
"expressed interests" of the underrepresented gender,

25;
(iii)
abilities,
programs at
other
such
programs
as
club
indicative
and
of
intramural
"feeder" schools, community and
the
id. at
___
interests
sports,
the
and
sports
regional sports
-55-55-
lack-of-interest
defense
to become
the
instrument
discrimination against the underrepresented gender
the remedial purpose
of Title IX.
We conclude
of further
would pervert
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,
irrelevant where, as here,
such evidence is
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
consequence.
of full
abilities
As
accommodation of athletics
is potentially
a complicated
the question
interests and
issue where
seek to create a new team or to elevate to
that
arguments are of no
the prior panel recognized, while
and effective
completely
plaintiffs
varsity status a team
has never competed at the varsity level, no such difficulty
____________________
programs, and physical education classes, id.

___
As the
characterizes
district court
surveys as
noted, however,
"simple way
the agency
to identify
which
additional sports
might appropriately be created
to achieve
compliance. . . . Thus, a survey of interests would

determination
that
an institution
does
not
follow a
______
satisfy prong
three; it would not be utilized to make that determination in

the first
instance."
see
___
Investigator's Manual
1990
survey
or
required
Cohen III,
_________
assessment
by
the
of
OCR has concluded that

not
equally
IX
page 27
of the
210 n.51;
(explaining that
abilities
regulation
or
is
the
a
not
Policy
remedy when
an institution's current program does
(We
accommodate
the
interests
note that the text of the
Investigator's Manual cited herein

at
27
required as part of a
effectively
abilities of students).
at
interests and
Title
Interpretation but may be
897 F. Supp. at
copy of the
court.)
-56-56-
and
1990
at page 25 was apparently

Manual before
the district
is presented here, where
plaintiffs seek to reinstate
successful university-funded teams right
teams were demoted.16
I,
_
809
F.
Supp.
Cohen II,
________
at
992
what were
up until the moment the
991 F.2d at 904; see also Cohen

___ ____ _____
("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
and
effectively
underrepresented
the
gender
interests
is
and
clearly
to accommodate fully
abilities
established.
of
the
See
___
Clarification Memorandum
eliminated a
will
find
at 8
viable team
that
there
("If an institution
has recently
from the intercollegiate
program, OCR
is
sufficient
available competition to sustain
sport
unless an
interest,
to
particularly
n.2 ("While
OCR
in
in
the
ability,
and
an intercollegiate team in that
can provide
ability or available
id. at 8-9
___
helpful
institution
interest,
strong evidence
that
competition no longer exists.");
[other] indications of
ascertaining
absence
of
likely
more
interest may
interest
direct
on
be
campus,
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
demotion;"
that the
been successful for
varsity team prior
donor-funded women's
many years
to the
fencing team
and that its
request to
1991
had
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

demonstrated
the interest
varsity status.
and
ability to
team had
compete at
full

_________
-57-57-
institution
abilities
is
expected
to
meet
the
actual
interests
of its students and admitted students.").
and
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
Finally,
participation
F. Supp.
the
in sports
at
212, is
tremendous
since
growth
Title IX
are less
clearly
Brown's
argument that women
reasons
unrelated to lack of opportunity.
correct.
in
women's
was enacted
disproves
interested in
sports for
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
and the
debunking of
"the
of women's participation in sports
traditional myth
that women
aren't
interested in sports").
Brown's
relative
interests
approach
is
not
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
Instead,
disparity by
law, thereby
disadvantaging further the underrepresented gender.
Had Congress
intended
its
this approach
freezes that
participation opportunities.
to entrench, rather than change, the status quo -- with
historical emphasis on
the detriment of women's
men's participation opportunities to
opportunities -- it need not
to all the trouble of enacting Title IX.
-58-58-
have gone
V.
V.
In the
Fifth
Amendment
scheme.
first
equal
appeal, this
protection
court
challenge
Cohen II, 991 F.2d at 900-901.

________
Here,
rejected
to
the statutory
Brown argues that
its challenge is to the decision of the district court.
puts
it, "[t]he
[equal
court's holding that
protection] violation
Brown's
As Brown
arises from
the
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
constitutionality of
rests
upon
at
least
two erroneous
strict
challenges
assumptions:
authority on point
only to consider Brown's
apply
Brown
the statutory scheme itself,
Adarand is controlling
_______
to
that
the
the challenge
first,
that compels us,
that
not
constitutional challenge anew, but also
scrutiny to
the
analysis;
second,
that the
district court's application of the law in its liability analysis
on remand
is inconsistent
the prior appeal.
with the interpretation
We reject both premises.17
expounded in
Brown's implicit
____________________
17.
We assume,
its equal
without deciding, that Brown
protection claim
Appellees argue that

not
raise it in
(citing
Desjardins v.
__________
standing
this claim is waived
the district court.
1280, 1282 (1st Cir.

the
and has
has not waived

to raise
because Brown did
Appellee's
Van Buren Community Hosp.,

__________________________
1992)).
extent that the equal
it.
Appellees also argue
Br. at 55
969 F.2d
that, to
protection claim is viable, Brown
-59-59-
reliance on Adarand as contrary intervening controlling authority

_______
that warrants
misplaced
makes
a departure from the
because, while Adarand does

_______
is wholly
and, even
law of the
irrelevant to the
case doctrine is
make new law,
disposition of
the law it
this appeal,
if Adarand did apply, it does not mandate the level of

_______
scrutiny to be applied to gender-conscious government action.
In
Cohen II
_________
rejecting Brown's
panel stated,
powers under the Fifth
991
F.2d
at
Broadcasting,
____________
"Congress need
901.
497
"It is
not make
clear
protection
that Congress
claim,
the
has broad
Amendment to remedy past discrimination."
The
U.S.
equal
at
panel
cited
565-66 (for
as
the
specific findings of
authority
Metro
_____
proposition
that
discrimination to
grant race-conscious relief"), and
at 317 (noting
that
that Webster
_______
benefitted women
permissible
one
of
"in
upheld a social
part because
redressing
disparate treatment of women'").
panel
Califano v. Webster, 430 U.S.

________
_______
our
its
security wage
law
purpose was
'the
society's
longstanding

________
The
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
decision
education
and
acted
to
in Grove City College

___________________
reverse
v. Bell,
____
the
Supreme
465 U.S.
Court's
555, 573-74
____________________
lacks standing to
raise it.
Appellee's Br.
at 56
(citing
Powers
______
v. Ohio,
____
(1991)).
Given
499
U.S. 400,
111
our disposition
S. Ct.
of this
1364,
claim, we
1370-71
do not
address these arguments.
-60-60-
(1984)
(holding that
applied only
federal
Title IX
was "program-specific"
to those university programs
funds and
not
to the
athletics prominently in mind.
rest
and thus
that actually receive
of the
university),
with
________
In Metro Broadcasting, the Court upheld two federally

__________________
mandated
race-based
scrutiny.
measures
to the
preference
policies
intermediate
497 U.S. at 564-65 (holding that benign race-conscious
mandated by Congress
"are constitutionally permissible
extent that they serve
important governmental objectives
within the power
of Congress
and are
achievement of those objectives").
applied intermediate scrutiny,
year,
under
substantially related
to
The Metro Broadcasting Court

__________________
notwithstanding that the previous
in Croson, 488 U.S. 469, the Court applied strict scrutiny

______
in striking down a municipal
construction
contracts.
distinguished
Croson,
______
noting
minority set-aside program for city
The
that
Metro
Broadcasting
____________________
"[i]n
fact,
much
Court
of
the
language
and
Fullilove18
_________
reasoning
that
in
Croson
______
race-conscious
Congress to address racial
reaffirmed
the
classifications
lesson
of
adopted
by
and ethnic discrimination are subject
____________________
18.
In
Fullilove,
_________
standard
subsequently
scrutiny,
see
___
upholding
plurality
of
Court
applied
to
be
intermediate
acknowledged
Metro Broadcasting,
___________________
against
the
Fifth
497
Amendment
U.S.
at
equal
564,
in
protection
challenge a benign race-based affirmative action program that

was
adopted by
Congress.
objectives
__________
The
of
an
agency
at
the
Fullilove plurality
_________
th[e] legislation
explicit
inquired
are
within
direction
of
"whether the
the power
of
Congress[]" and "whether the limited use of racial and ethnic

criteria
. . .
is a constitutionally
achieving the congressional objectives."
-61-61-
permissible means for

_____
448 U.S. at 473.
to a
different standard than such
state and local governments."
classifications prescribed by
Metro Broadcasting, 497

__________________
U.S. at
565.
Adarand
_______
overruled Metro Broadcasting to

___________________
that Metro Broadcasting is

___________________
that "all
the extent
inconsistent with Adarand's

_______
racial classifications,
imposed by
holding
whatever federal,
state, or local government actor, must be analyzed by a reviewing
court
Ct. at
under strict scrutiny."
2113.
overruling of
disposition of
Brown impliedly
Adarand, --_______
assumes
U.S. at ---, 115 S.
that Adarand's
_______
Metro Broadcasting invalidates

__________________
Brown's equal
its passing citation
the prior
protection challenge by
to Metro Broadcasting.
__________________
partial
panel's
virtue of
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
__________
principle
cited
regarding
discrimination,
Adarand.
_______
Metro
Broadcasting
____________________
Congress's
proposition
broad
that
for
powers
was
not
Moreover, Webster, which Cohen II

_______
________
general
to
remedy
reached
by
cited along with
Metro Broadcasting, was not overruled or in any way

__________________
rendered
suspect by Adarand.
_______
20.
It
is
protection
Clause
well
settled
guarantee
of
that
the
the Fifth
reach
of
Amendment
the
Due
equal
Process
-- the basis for Brown's equal protection claim -- is
coextensive
with
that
of the
-62-62-
Fourteenth
Amendment
Equal
statutory
scheme.
Cohen II,
_________
991
F.2d
at
901
constitutional infirmity, assuming arguendo, that

________
creates a classification somewhat
the
that
extent that
(finding
the regulation
in favor of women).
Brown challenges
the statutory
no
Thus, to
scheme itself,
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.
---, 115
See
___
Miller,
______
--- U.S.
at
S.
Ct. at
2491.
Therefore,
court's
we
review
order
the
requiring
constitutionality
Brown
to
accommodating fully and effectively
abilities
of
its
classification
women
however, we must
test.
the
with
district
Title
IX
the athletics interests
students.
is gender-based,
intermediate scrutiny
comply
of
Because
it must
the
and
challenged
be analyzed
Before proceeding
by
under the
to the analysis,
first address Brown's challenge to the standard
of review.
Brown concedes that
Adarand "does not,

_______
overruling Metro Broadcasting, set forth the

___________________
review for this
Brown asserts
classification,
case."
Appellant's Br. at
that "[w]hile Adarand

_______
its
analysis
proper standard of
29.
is a case
clearly
in partially
Nevertheless,
involving racial
applies
to
gender
classification as
well."
Id.
___
at 27.
Further, inappropriately
____________________
Protection Clause.
at
E.g., United States v. Paradise, 480 U.S.

____ _____________
________
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
classifications.21
strict scrutiny
Appellant's Br. at
These conclusory assertions do
applies
to
gender-based
29; Reply Br.
at 19-20.
not comport with the law
in this
circuit.
First, as explained earlier, Adarand and Croson apply

_______
______
to
review of legislative affirmative
presents
action schemes.
This case
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,
_________
gender-based
upon
race,
suspect, and
a plurality
classifications,
alienage,
or
of the Court
"like
concluded that
classifications
national origin,
must therefore be subjected
are
based
inherently
to strict judicial
scrutiny."
411 U.S. at 688.
elapsed, this
Court,
In the 23 years that have since
position has never commanded a majority of the
and has never been
adopted by this
court.
Whatever
may be the merits of adopting strict scrutiny as the standard

to
be
applied
inappropriate
to
to
gender-based
suggest,
as
classifications,
Brown does,
that
it
is
Frontiero
_________
compels its application here.

Brown's
assertion
court to apply Croson

______
incorrect.
action
As
that
Adarand
_______
to its equal protection claim
noted previously,
case and
obligates
does
not
Croson is
______
control
review
violated.
is also
an affirmative
of
determination that a federal anti-discrimination

been
this
judicial
statute has
To the extent that Brown assumes that Croson

______
governs the issue of the sufficiency of the factual predicate

required
to uphold
gender-based
unfounded.
are
not
federally mandated,
classification,
that
As we have explained,
raised
predicated
upon
by
district
multiple indicia of reliability

discrimination in
point
out that
sufficiency
violation of a
Adarand did
_______
of the
factual
assumption
is
or
also
Croson's factual concerns

______
court's
duly adjudicated
benign race-
factual
determination
--
findings bearing
and specificity -- of gender

federal statute.
We also
not reach
the question
of the
predicate
required to
satisfy
strict scrutiny
review of a
congressionally mandated
race-
based classification.
-64-64-
statutory
and
constitutional propriety
ordered to provide
of the
judicial remedy
redress to plaintiffs with standing
who have
been injured by the violation.
Second,
Adarand
_______
does
not
even
discuss
gender
discrimination, and
its holding
based classifications.
can
is limited to
--- U.S. at ---, 115
explicitly race-
S. Ct. at 2113.
It
hardly be assumed that the Court intended to include gender_______
based classifications within
Adarand's precedential scope or

_______
elevate, sub silentio, the level

___ ________
of scrutiny to be applied by
to
reviewing court to such classifications.
Third, even if Adarand did apply, it does not dictate

_______
the
level of
concedes.
applied
scrutiny
For the
intermediate
to be
applied
last twenty
scrutiny
years,
to
protection challenges to gender-based
the
Supreme
Court's
most
United States v. Virginia,

_____________
________
in this
recent
all
case, as
the Supreme
cases
Brown
Court has
raising
equal
classifications, including
gender discrimination
--- U.S. ---, 116 S. Ct.
case,
2264 (1996)
("Virginia"); see id. at 2288 (Rehnquist, C.J., concurring in the

________
___ ___
judgment) (collecting cases).22
____________________
22.
of
We
point out that Virginia adds nothing to the analysis

________
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,"
sparse
and
"substantially
objective,"
based
related
to
use
an
policy
at
2275;
id.
___
at
2288
struck down
issue
intermediate scrutiny, --- U.S.

(Rehnquist,
-65-65-
the
important
the Court nevertheless
admissions
of
in
that
formulation
governmental
the gendercase
at ---, 116 S. Ct.

C.J.,
concurring
under
at 2271,
in
the
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
court nor the
context
of racial classifications.
Supreme Court
of gender
has drawn this
discrimination
claims or
Neither this
distinction in
held
that a
the
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
intermediate scrutiny and recognizing
change with the objective
476 U.S. at 273.
policy under
that the analysis does not
of the classification); accord Wygant,

______ ______
Thus, the analytical result would be same, even
if this were an affirmative action case.
Under
demonstrating
an
government-imposed,
showing that
the
intermediate
exceedingly
scrutiny,
persuasive
gender-conscious
the
burden
justification
classification
classification serves
important
for
is met
of
by
governmental
objectives, and that the means employed are substantially related
____________________
judgment),
the
classifications since
standard
1976, when
applied
to
it was first
gender-based
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,
______
(1979);
Kirchberg v.
_________
450 U.S.
Hogan, 458 U.S. at

_____
Feenstra,
________
442 U.S.
455, 461
256, 273
(1981);
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.
724.
Applying that test,
E.g., Hogan, 458 U.S. at

____ _____
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
resources to support
individual
citizens
practices,"
Cannon,
______
objectives.
the use
of federal
discriminatory practices," and "provid[ing]
effective
441
U.S.
We also find
anti-discrimination
of "avoid[ing]
protection
at 704,
are
against
clearly
that judicial enforcement
statutes
is
at
least
an
those
important
of federal
important
governmental objective.
Applying
scrutiny
the
test, we find that
second
prong
of
the means employed
the
intermediate
by the district
court
in
clearly
fashioning
relief
substantially
for the
related
statutory
to these
violation
important
are
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
athletics is
that
remedy
it is
IX as it
applies to
distinct from other anti-discrimination
regimes in
impossible to
without counting and
explicitly in mind.
equal
previously, Title
determine compliance
or to
devise a
comparing opportunities with gender
Even under the individual rights
theory of
protection, reaffirmed in Adarand, --- U.S. at ---, 115 S.

_______
-67-67-
Ct. at 2112 (the
not groups"),
individual
equal protection guarantee "protect[s] persons,
the only way to determine whether the rights of an
athlete
have
necessary to remedy the
been
test
creates
and
what
violation is to engage in
gender-conscious comparison.
three-part
violated
relief
is
an explicitly
Accordingly, even assuming that the
a gender
classification
that
favors
women, allowing consideration of gender in determining the remedy
for
Title
IX
"ensur[ing]
violation serves
that
in
the
instances
important
where
objective of
overall
athletic
opportunities decrease, the actual opportunities available to the
underrepresented gender
do not."
addition, a gender-conscious
permissible
if
it
Kelley, 35
______
limited
favoring
one
directly
protects
circumstances,
sex can
directly assists
be
members of
In
remedial scheme is constitutionally
disproportionately burdened gender.
("In
F.3d at 272.
justified
the
interests
See Hogan, 458

___ _____
gender-based
if
the sex that
it
of
the
U.S. at 728
classification
intentionally
and
is disproportionately
burdened.").
Under
Brown's interpretation of the three-part test,
there can never be a
opportunity
mandate.
interpretation and
quota,
remedy for a violation of Title
In concluding
that the
district court's
application of the three-part
Brown errs, in part,
because it fails
IX's equal
test creates a
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
with
not implicated
respect to athletics
shown to exist.
unless a
gender-based disparity
has been
Where such a disparity has been established, the
inquiry under prong three is whether the athletics interests
and
abilities
and
of
the
underrepresented
effectively accommodated, such that
gender
are
fully
the institution may be found
to comply with Title IX, notwithstanding the disparity.23
Of course,
a remedy that requires
cut, add, or elevate the
an institution to
status of athletes or entire teams
may
impact the genders differently, but this will be so only if there
is
gender-based
opportunities to
disparity
begin with, which
with
respect
is the only
to
athletics
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
interests of
men
pertaining
and women.
to
the
relative
Reviewing the
athletics
district
court's
____________________
23.
Under
the three-part
test,
excuse the disparity under prong

and
continuing
demonstrably
practice
responsive
of
to
reaching
in which
case the
prong three.
program
the
cannot avail itself of
expansion
developing
also
"history
which
interest
is
and
gender]," 44 Fed. Reg. at
compliance inquiry
It has
may
two, by showing a
abilities of the [underrepresented

71,418,
the institution
been determined
this defense.
See Cohen
ends without
that Brown
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
Dr. Sabor's direct testimony
college.
did not address this issue,
Because
it was
within the district court's discretion to limit cross-examination
"to the subject matter of the direct examination."
611(b); see Ferragama v. Chubb Life Ins. Co. of Am.,

___ _________
__________________________
Fed. R. Evid.
94 F.3d 26,
28 (1st Cir. 1996).
Brown
also
exclusion of statistical
suggests
and survey data
its relative interests argument
district court
excluded as full
Gender Equity Study and
that
the
district
court's
offered in support
constitutes error.
of
Although the
exhibits two studies,
the NCAA
the results of an undergraduate
poll on
student interest in athletics, it nevertheless permitted
Brown's
experts to rely
basis
for
on the data contained in these
their expert
opinions.24
two reports as a
Because Brown's
experts
____________________
24.
Brown
also contends
that the
excluding the NCAA Annual Report.
district court
erred in
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
how it was prejudiced by the exclusion.

the argument waived.
as to
Accordingly, we deem
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
perfunctory
manner,
unaccompanied by some developed argumentation, are deemed

have been abandoned.") (citations omitted).
-70-70-
to
relied
issue
upon the excluded data in providing their opinions on the
of
athletics,
a gender-based
the evidence
differential
was before
error was, therefore, harmless.
v.
Greenwood, 464
_________
courts
to
"ignore
U.S. 548,
errors
in
student interest
the trier
of fact
in
and any
See McDonough Power Equip., Inc.

___ ____________________________
553 (1984)
that
do
not
(instructing appellate
affect the
essential
fairness of the trial").
VII.
VII.
It
does
not
follow
from
our
statutory
and
constitutional
analyses that
remedial order.
district
court's
Although we decline Brown's invitation
to find
that the district court's
do find that
specific
in
proposal to comply
endorse the
remedy was an abuse of
the district
relief
we
court erred in
place of
with Title
Brown's
discretion, we
substituting its
statutorily
IX by cutting
own
permissible
men's teams
until
substantial proportionality was achieved.
In Cohen II we stated that it

________
peradventure
that,
where
no
appears, the federal judiciary
appropriate
pursuant
Franklin,
________
relief on
to a
federal
a cause
contrary
legislative
directive
possesses the power to
grant any
___
of action
statute."
503 U.S. at 70-71).
is "established beyond
991
We also
appropriately brought
F.2d
at
901
(citing
observed, however, that
"[w]e
are
recognizes
society
that
operations."
991
that
universities
cherishes
deserve
academic
great
F.2d at 906 (citing Wynne v.

_____
freedom
leeway
in
and
their
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
freedom does not embrace the freedom to discriminate.
v.
Wellesley College,
__________________
930
F.2d
124,
129
(1st
academic
Villanueva
__________
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
altogether, it may elevate or
program
create the
requisite number of women's positions, it

may
demote
number
of
implement
remedies.
or
eliminate the
men's
positions,
combination
program
opportunities
athletes.
or
it may
of
these
I leave it entirely to Brown's
discretion to decide how it

its
requisite
to
for
its
recognize
will balance
provide
equal
men
women
the
and
financial
constraints Brown faces; however, its own

priorities will necessarily determine the
path to compliance it elects to take.
Cohen III, 879 F. Supp.

_________
898
at 214; see also

___ ____
Cohen II, 991 F.2d

________
at
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.
rejecting
We then
Brown's plan
consider
and the
the district
court's
specific relief ordered
order
by the
court in its place.
Brown's proposed
compliance plan stated its
follows:
-72-72-
goal as
The
plan
has one
gender
ratio
teams
at
goal:
among
to make
the
University-funded
Brown
substantially
proportionate
to the gender ratio of the
undergraduate
student body.
the
University
expressed
gender
others.
must
athletic
while
do so,
disregard
interests
providing
To
the
of
one
advantages
for
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
to the
and
Brown's philosophy
extent that it
grants advantages
enforces disadvantages
athletes solely because
upon student
of their
gender
and curbs the historic role of coaches in

determining the number of
can
be
provided
participate.
University
with
an
athletes which
opportunity
Nevertheless,
wishes to
the
notwithstanding
act in
order
of
issues
to
the
good faith
the
Court,
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
already strained physical and fiscal resources."
The general provisions of
as
follows: (i) Maximum squad sizes
and enforced.
that
meet
(ii) Head
minimum
size
on
Id.
___
the plan may be summarized
for men's teams will be set
coaches of all teams must
requirements.
-73-73-
stress
(iii)
field squads
No
additional
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
implementation,
determines
that
plan
id. at
___
this
sets
forth
4-5, and
plan
nine
steps
concludes that
is
not
"if
sufficient
for
its
the Court
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.
30
women participated
proposed
at 5-6.
varsity numbers
to
come
donor-funded
varsity teams,
donor-funded varsity
Second, Brown's plan
four women's teams."
proposal
on
plan disregarded
Court Order
women's
First, despite the fact that 76 men and
by adding
Id. at 6.
___
teams. District
"artificially boosts
junior varsity
As to the
into compliance
by
positions on
propriety of Brown's
the
addition
varsity positions, the district court held:
Positions
on
distinct
junior
varsity
squads do not qualify as "intercollegiate

competition"
opportunities
Policy Interpretation and

included in defendants'
in
Cohen,
_____
879
"intercollegiate"
"regularly
competition."
F.
under
the
should not
be
plan.
Supp.
teams
participate
As
noted
at
200,
are those
in
Brown's
that
varsity
See 44 Fed. Reg. at 71,413

___
of junior
n.1.
Junior
varsity
definition, do not
Counting
new
squads,
meet this
women's
by
criterion.
junior
varsity
-74-74-
positions
as
equivalent
to men's
full
varsity positions flagrantly violates the

spirit
and letter
sense is an
IX;
institution providing
opportunity
positions
of Title
if
to
men
it
but
affords
junior
in no
equal
varsity
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
good
faith effort to comply with this
8.
In criticizing
another
Court's mandate."
facet of
[a]n institution does
not provide
opportunity
if it
after
are well-stocked
they
caliber recruits
caps its
equal
men's teams
with high-
while requiring women's
teams to boost numbers by accepting walkons.
men's and
allows
their
university
does not
women's
teams equally
treat its
overrides
maximum
the
capacity limits
judgment
of
coaches
women's teams on the same matter.
Id. at 8-9.
if
it
the coaches of men's teams to set

own
Id. at
___
Brown's plan,
district court pointed out that
but
of
the
___
After rejecting Brown's proposed plan, but bearing in
mind Brown's stated objectives,
the district court fashioned its
own remedy:
have
concluded
objectives
design
will
that
be
best
Brown's
served
stated
if
a remedy to meet the requirements
of prong three rather than prong one.
In
order to bring Brown into compliance with

prong one under
would have
men's
213
teams
men's
extreme
defendants' Phase II,
to order Brown
to cut enough
to eradicate
approximately
varsity
action is
positions.
This
entirely unnecessary.
-75-75-
The easy answer lies in ordering Brown to

comply with prong
three by upgrading the
women's gymnastics,
water
polo
fencing, skiing, and
teams
varsity status.
to
university-funded
In this way, Brown could
easily achieve prong three's
standard of
"full and effective accommodation

underrepresented sex."
entail
upgrading
approximately
finance
40
This remedy would
the
women.
of
In
to
order
women's
positions, Brown certainly will
not have
eliminate as
40
positions
additional
to
the
of the
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
both the male and the
of
female athletes to
have an increase in women's opportunities

and
small
decrease
in
men's
opportunities, if necessary, rather than,

as
under Brown's
women's
decrease
no increase
__
opportunities
in
areas where
and
men's
Expanding women's
in
plan,
in
large
_____
opportunities.
athletic opportunities
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
maintain women's gymnastics, women's
to
"elevate and
water polo, women's skiing,
and women's fencing to university-funded varsity status."
12.
The court stayed this part
Id. at
___
of the order pending appeal and
further ordered that, in
the interim, the preliminary injunction
prohibiting
eliminating
Brown
from
or
demoting
women's varsity team would remain in effect.
any existing
Id.
___
-76-76-
We
proposed
agree
plan fell
with
short of
the
district
a good
faith
court
that
effort to
Brown's
meet the
requirements of Title IX as explicated
by this court in Cohen II

________
and as applied by the district court on remand.
is replete with argumentative
appellate brief.
to this court,
It
Indeed, the plan
statements more appropriate for an
is obvious that Brown's plan
rather than to offering a
was addressed
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.
court's reasons
Thus,
although
for substituting
we understand
the district
its own specific
relief under
the circumstances at the time, and although the district
remedy
is within
think that
the statutory
the district court
margins and
was wrong
court's
constitutional, we
to reject
out-of-hand
Brown's alternative plan
teams.
the
After all,
to reduce the
the district court itself stated that
compliance options available to
"demote or
eliminate the
reluctance
university
to
Brown under Title
requisite number of

_________
and
number of men's
interject
affairs counsels
varsity
one of
IX is to
men's positions."
Our respect for academic freedom
ourselves
that we
into
the
conduct
give universities
of
as much
freedom as possible in conducting their operations consonant with
constitutional
and statutory limits.
Villanueva, 930 F.2d at 129.

__________
-77-77-
Cohen II, 991 F.2d at 906;

________
Brown therefore should be afforded the opportunity to
submit another plan for compliance with Title IX.
the
case has
changed in
two significant
presented its original plan.
Brown
have
Brown is no longer an appellant
seeking a favorable result in the Court
court is not under
respects since
First, the substantive issues
been decided adversely to Brown.
district
The context of
of Appeals.
time constraints to
Second, the
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
further plan for its consideration.
judgment
of the
district court
is
In all other respects the
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
face of women's sports as well
attitude
changed the
as our society's interest in
toward women athletes
and women's sports.
See, e.g.,
___ ____
Frank DeFord, The Women of Atlanta, Newsweek, June 10,

_____________________
62-71; Tharp, supra,

_____
Exclusion,
Washington
at 33;
Robert Kuttner,
Post, September
4,
and
1996, at
Vicious Circle of
__________________
1996,
at
A15.
In
_________
addition,
there
is
ample
evidence
that
participation opportunities for women and
increased
athletics
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
performances
need
look
no
further
than
the
impressive
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.
of
women
These Olympians represent the first full generation
to
unprecedented
grow
up
success
under
the
of these
athletes
measure, to Title IX's beneficent
the athletes themselves have
stimulated
athletic
this
was not
in sports,
of
Title
is due,
IX.
in
The
no small
effects on women's sports,
acknowledged time and again.
remarkable change
competition
women's interest
aegis
in
the
sudden,
but the
quality of
What
women's
anomalous upsurge
enforcement of
as
in
Title IX's
mandate of gender equity in sports.
Kuttner, supra, at A15.

_____
Affirmed in part, reversed

Affirmed in part reversed
further proceedings.
further proceedings.
in part, and remanded for

in part, and remanded for
No costs on appeal to either party.

No costs on appeal to either party.
- Dissenting opinion follows - Dissenting opinion follows -
-79-79-
TORRUELLA, Chief Judge (Dissenting).

TORRUELLA, Chief Judge (Dissenting).
___________
persuaded
that the majority's
Because I am not
view represents the
law today, I respectfully dissent.
I. THE LAW OF THE CASE

I. THE LAW OF THE CASE
state of the
Under the doctrine of the "law of the case," a decision
on
an issue
becomes
of the
of law
made by the
a binding precedent to
same
litigation except
court at
one stage
be followed in successive stages
in unusual
circumstances.
Abbadessa v. Moore Business Forms, Inc., 987 F.2d

_________
____________________________
Cir. 1993); EEOC v. Trabucco, 791 F.2d 1, 2

____
________
is
well established,
of a case
however, that
18, 22
(1st Cir. 1986).
decision of
See
___
(1st
It
the Supreme
Court, that is rendered between two appeals and is irreconcilable
with the
second
(1965);
decision on the first
appeal.
See
___
appeal, must be
Linkletter v.
__________
Metcalf & Eddy, Inc.

____________________
Auth., 945 F.2d 10, 12 (1st

_____
Walker,
______
followed on the
381 U.S.
618, 627
v. Puerto Rico Aqueduct and Sewer

_______________________________
Cir. 1991), rev'd on other grounds,

_______________________
506 U.S. 139
1990);
(1993); Young v.
_____
Fogel v.
_____
Herring, 917
_______
Chestnutt, 668
_________
F.2d 858 (5th
F.2d 100,
cert. denied, 459 U.S. 828 (1982).

____________
109 (2d
Cir.
Cir. 1981),
I believe that we face such a
situation in the instant case.
A.
A.
At
(1st Cir.
test
Adarand and Metro Broadcasting

Adarand and Metro Broadcasting
_______
__________________
the time of Cohen v. Brown University, 991 F.2d 888

_____
________________
1993) (Cohen II), the standard

_________
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
_____
456, 461 (1988); see also Mississippi Univ. for Women

_________ ___________________________
458
U.S. 718, 723-24, and
n.9 (1982); Mills

_____
(1982); Craig v.
_____
Boren, 429 U.S.

_____
Matthews v.
________
Lucas, 427 U.S. 495, 505-06 (1976).

_____
strict scrutiny review prior
v. Hogan,
_____
v. Habluetzel, 456
__________
U.S. 91, 99
case under
U.S.
190, 197
(1976);
As was also the
to Adarand Construction
____________________
Inc.
____
v.
Ct. 2097
(1995), however,
courts applying intermediate scrutiny sometimes
allowed "benign"
gender
Pena, __
____
U.S. __,
classifications
on
115 S.
the
grounds
that
they
were
"reasonable means of compensating women as a class for past . . .
discrimination."
Ronald D. Rotunda & John E. Novack, 3 Treatise

________
on Constitutional Law
_____________________
430
U.S.
313, 317
18.23, at 277; see Califano

___ ________
(1977)
(allowing women
to
v. Webster,
_______
compute certain
social security benefits with a more favorable formula than could
be used by
men); Lewis v.
_____
affirmance of a
Cohen, 435 U.S.

_____
948 (1978)
(summary
district court decision upholding a provision of
the Railroad Retirement Act
that allowed women to retire
60 while men could not retire until age 65).
at age
In Cohen II, we applied precisely

________
classification analysis
to what
we viewed to
discrimination by the federal government.
its brief
discussion of
the
this type of benign-
be benign
gender
Although Cohen II, in

________
equal protection
issue, does
not
specify the precise standard it used, the court stated that "even
if we were to
assume . . . that the
classification slanted somewhat
regulation creates a gender
in favor of women, we would find
-81-81-
no
constitutional infirmity."
that the focus is on
Cohen II,
________
991 F.2d at 901.
the government's ability to favor
Note
women in
this context, rather than on an "important government objective,"
suggesting
that
the court
benign discrimination.
identified in Cohen II.

________
considered the
Indeed,
issue
to be
one of
no governmental interest is even
Furthermore, both
of the cases cited by
the Court in Cohen II are cases in which a suspect classification

________
was allowed because it
Metro Broadcasting Inc.

________________________
was judged benign, see id. at 901 (citing

___ ___
v.
FCC, 497
___
U.S.
547 (1990)
Califano v. Webster, 430 U.S. 313 (1977) (sex)).

________
_______
(race);
Cohen II's
_________
assumption that
favor of
women would be
and
implication
by
regulation slanted
permissible, Cohen II 991

________
that
the
same
in
F.2d at 901,
regulation
would
be
impermissible if it favored men, was based on Metro Broadcasting,

__________________
which
held
government
that
benign
was subject
race-based action.
to
race-based
a lower
action
by
the
standard than
See Metro Broadcasting, 497

___ ___________________
non-remedial
U.S. at
Specifically, the Supreme Court announced that
benign
by
race-conscious
Congress
are
federal
measures mandated
constitutionally
permissible to the extent that they serve

_____________________________
important governmental objectives within
_________________________________________
the
power
of
Congress
and
are
_________________________________________
substantially related to achievement of
_________________________________________
564.
those objectives.
________________
Id.
___
at
565
(emphasis
added).
Although
explicitly discussed race-conscious rather
-82-82-
Metro Broadcasting
___________________
than gender-conscious
classifications,
we applied its standard in Cohen II.

________
See Cohen
___ _____
II, 991 F.2d at 901.

__
Since Cohen II, however, Metro Broadcasting has

_________
___________________
overruled, at
least in part.
See
___
Adarand Constr. Inc. v. Pena,

____________________
____
___ U.S. ___, ___, 115 S. Ct. 2097, 2111-12 (1995).
the Supreme Court
held that
The Court in Adarand singled

_______
"significant
jurisprudence
departure"
that
had
In
Adarand,
_______
"all racial classifications
must be analyzed under strict scrutiny."
2113.
been
from
much
come
before
. .
Adarand, 115 S. Ct.

_______
at
out Metro Broadcasting as a

__________________
of
the
Equal
it, in
part
Protection
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,
_______
not
always be
benign.'"
U.S. 265
clear
the Supreme
that a
Court reasoned that
so-called
preference is
"'it may
in
fact
Id. (quoting Regents of Univ. of Cal. v. Bakke, 438

___
__________________________
_____
(1978)
(opinion of
Powell, J.)).
Additionally,
the
Supreme Court endorsed the view that
[a]bsent searching judicial inquiry

justification
there is
for such
simply no
classifications
and
what
are
race-based measures,
way of
determining what
'benign' or
classifications
motivated by illegitimate
into the
are
'remedial'
in
notions of
fact
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
that the
is not necessary to
logic of
categories and
Adarand -_______
equate race and
counseling that we
justifications proffered rather
attached -- applies in the context of gender.
gender to see
focus on
than the
the
labels
While cognizant of
differences
between
race-focused
Protection precedent,
us
to
actions
view
the
"benign"
same
governmental actions.
lens
Virginia's
classification
Educ., 897
_____
courts
ensure
116
benign
skeptically);
F. Supp.
discrimination").
any
other
sex-based
Rather than
S.Ct 2264,
Shuford
_______
governmental
gender-conscious
at 2112; see also

________
2274,
justification
1535, 1557
"must look behind the
that
as
Equal
Adarand compels
_______
gender-conscious
See Adarand, 115 S. Ct.

___ _______
United States v. Virginia,

___________________________
(viewing
gender-focused
I nevertheless think that
so-called
under
and
for
2277 (1996)
gender
v. Alabama State Bd. of

______________________
(D. Ala.
1995) (stating
recitation of a
classifications
that
benign purpose to
redress
conduct an inquiry
past
into whether
Title
IX
and
its
resulting interpretations
"benign"
or
"remedial," and conscious of the fact that labels can be used
to
hide illegitimate notions of
as easily in the context
are
inferiority or simple politics just
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
Webster, 430 U.S. 313

_______
overruled.
in
Cohen II also
_________
cited
Califano
________
v.
(1977), which has not
been explicitly
concerned Congress'
provision, under
That case
the Social Security Act, for a lower retirement age for women
than
for men,
with the
result that,
-84-84-
as
between similarly
B.
B.
to
review
Virginia,
________
United States v. Virginia

United States v. Virginia
_____________
________
second Supreme Court case has also made it necessary
our decision
116
S.Ct.
Protection challenge
Virginia
than
in
2264
Cohen II.
_________
(1996),
to Virginia's
the
classifications
the
be
faced
requiring that
related
to
an
v.
an Equal
male institution.
traditional test
"substantially
Court
practice of maintaining
Military Institute as an all
simply apply
In United States
______________
the
Rather
gender
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
id., at 2274, which

___
or opportunities based
requires that "[p]arties who seek
gender-based government action
persuasive
discussion,
gender
justification'
the
must demonstrate an
for
Court stated
case, "the State must
that
action,"
that, in
order
show at least
________
id.
___
on sex,"
to defend
'exceedingly
In
to prevail
its
in a
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.
more
In that
frequent and
case, Congress specifically

lower age
limits were
women than to men in the labor market.
found that
being applied
Id. at 319.
to
This led
___
the
Supreme Court to characterize the
remedial rather
been
repealed
than benign,
in
1972,
provision at issue as
noting that the
roughly
provision had
contemporaneously
"congressional
[anti-discrimination] reforms
[that]
have
the
for
lessened
economic
justification
favorable benefit computation" for

instant case
reasons.
should be
did.
. .
the
more
Id. at 320.
___
The
distinguished from Califano

________
First, Califano did

________
classifications,
women.
with
for two
not necessarily rule on benign
as Metro Broadcasting and

___________________
Adarand clearly
_______
Second, Califano, unlike the instant case, contained an

________
"exceedingly
persuasive
justification"
conscious state action.
-85-85-
for
its
gender-
classification
serves important governmental objectives and that
the
discriminatory means employed
the
achievement of
quotations
related
omitted)
to
considered
an
are substantially
those objectives."
(emphasis
Id.
___
added).
important government
Being
(internal
"substantially
objective,"
a necessary but not sufficient
also requires a
at 2275
related to
therefore, is
condition.
The Court
focus on "whether the proffered justification is
"exceedingly persuasive."
Virginia
________
Id.
___
"drastically
standards for reviewing sex-based
revise[d]
our
classifications."
established
Id. at 2291
___
(Scalia, J. dissenting).
asks whether
serves
"Although the Court in two places . . .
the State has demonstrated
important
governmental
discriminatory means
that the classification
objectives
employed are
and
that
substantially related
the
to the
achievement of those objectives . . . the Court never answers the
question presented
2294
in anything
(citations omitted).
'exceedingly
persuasive
contradicts
the reasoning
resembling that
"[T]he
form."
Court proceeds
justification'
of Hogan
_____
in
and our
Id.
___
at
to interpret
fashion
that
other precedents."
Id.
___
What is important for our
Court
appears
discrimination
to
have
cases
to
purposes is that the Supreme
elevated
the
test
applicable
require
an
"exceedingly
to sex
persuasive
justification."
This is evident
from the language
of both the
majority opinion and the dissent in Virginia.

________
-86-86-
This
Broadcasting,
____________
is
not
just
and our application
matter
of its
of
semantics.
Metro
_____
standard in Cohen II, omitted the additional "skeptical scrutiny"

________
requirement
of an
"exceedingly
gender-based government
2274 (citing J.E.B. v.

______
37, and n.6 (1994)),
458
action.
persuasive
justification"
Compare Virginia,
_______ ________
116 S.Ct. at
Alabama ex rel. T.B., 511 U.S.

_______ _______ ____
and Mississippi Univ. for Women

___________________________
U.S. 718, 724 (1982),
with Metro Broadcasting,

____ __________________
for
127, 136-
v. Holden,
______
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
Under the new standards
the Supreme Court
in this
appeal.
established in those cases, Cohen II is

_________
flawed both because it applies
a lenient version of intermediate
scrutiny that
is impermissible following Adarand

_______
did not apply the
Virginia.
________
We
and because it
"exceedingly persuasive justification" test of
must,
Protection challenge
as
Brown
to the
urges,
reexamine
three-prong test as
the
Equal
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
appeal comes
to
preliminary injunction.
us in that posture,
the merits of
"When an
the appellate court's
conclusions as to
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."
American Trading and Prod. Co., 74

______________________________
(internal
quotations omitted);
A.M. Capen s Co. v.

________________
F.3d 317, 322 (1st Cir. 1996)
see also
_________
Narrangansett Indian
_____________________
Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991).

_____
________
The
lessened
by the fact
injunction.
of
binding
provide
of
that it was
Cohen II,
_________
therefore,
an appeal from
is
a preliminary
First, we now have a full record before us and a set
well-defined
Trial
authority
legal
on the merits has
questions
presented
served to focus
by the
appellant.
these questions and to
background that allows us to consider these questions in
the proper context
this court
and in detail.
In its
decision in Cohen II,

________
recognized and, indeed, emphasized the
holding was
only preliminary.
Cohen II, 991

_________
party losing the battle on likelihood of success
win the war
ruling into a
at a succeeding trial").
permanent one,
fact that its
F.2d at
may nonetheless
Rather than
we should review
light of the full set of facts now available.
902 ("a
turning that
the question
in
Second, the standard of review has
II
__
court stated that it
was adopting a
changed.
The Cohen
_____
deferential standard of
review, and that "if . . . the district court made no clear error
of law
or fact, we will overturn its calibration
manifest abuse
of discretion."
the court was based
on
the merits;
Id. at 902.
___
. . . only for
The test applied by
on "(1) the movant's probability
(2) the
potential for
-88-88-
of victory
irreparable harm
if the
injunction is refused;
(3) the balance
of interests as
the parties . . . and (4) the public interest."
now before
accordingly.
findings of
us on appeal
For
from the merits
the purposes
fact under
Newspapers of New England, Inc.,

________________________________
1995)
F.3d
it
The case is
and we must
of this appeal,
a clearly
Id.
___
review it
we must
erroneous standard,
44 F.3d 1060,
between
review
Reich v.
_____
1069 (1st
Cir.
and findings of law de novo, Portsmouth v. Schlesinger, 57

_______ __________
___________
12, 14 (1st Cir. 1995).
is conceivable that the
Because the standard has changed,
result of the
analysis will change,
making review appropriate.
II. BROWN'S EQUAL PROTECTION CHALLENGE

II. BROWN'S EQUAL PROTECTION CHALLENGE
Appellees have
not
create a
applies to
argued that
gender classification
both women and
men.
the three-prong test
because the
does
classification
Although I agree
that by
its
words, the test would apply to men at institutions where they are
proportionately underrepresented in intercollegiate
cannot
accept
Government
the
argument
that,
via
this
athletics, I
provision,
does not classify its citizens by gender.
the
See United
___ ______
States v. Virginia, ___ U.S. ___, 116 S. Ct. 2264, 2274-76 (1996)
______
________
(applying Equal
Protection
review to
action" where Commonwealth of
purportedly
equal
single-sex
"gender-based
government
Virginia attempted to maintain two
institutions).
Cf.
___
Loving
______
v.
Virginia,
________
statute
388 U.S. 1, 8-9
(1967) (stating that
at issue applied equally to
classifications,
it
still
even though the
members of different racial
implicated
race-related
Equal
-89-89-
Protection
concerns,
since the
statute itself
contained race-
conscious
classifications).
The
classification, even with equal
genders, requires
than
rational
fact
of
enforcement with respect to both
the application of a higher
basis
gender-conscious
review.
We
level of scrutiny
cannot
pretend
that
an
interpretation of a statute that contains explicit categorization
according
to gender
and that
effect does not represent
Protection
is
implicated
classification made
individual
to
individuals
based on
race, national
Nowak, 3
has intentional
gender-based government action.
where
the
by the government
treatment
gender-conscious
different
is
made
similarly
characteristic,
Ronald D. Rotunda
Treatise on Constitutional Law

______________________________
that
intentionally subjects an
from
an impermissible
origin, or gender.
claim
Equal
18.2, at 7-8
situated
such as
& John E.
(2d ed.
1992).
A.
The
The
District Court's
District Court's
Construction of
Construction of
the Threethe Three-
Prong Test
Prong Test
1. Prong One
1. Prong One
A central issue
athletic
1990-91
in this
case is the
"participation opportunities" are
academic year,
varsity teams on
Brown fielded
which 566 men and
manner in
counted.
16 men s
and
which
During the
15 women s
328 women participated.
By
the 1993-94 year, there were 12 university-funded men s teams and
13 university funded women s teams.
and 312 women.
teams,
the
Based
district
These teams included 479 men
on an analysis
court
concluded
-90-90-
of membership in
that
there
varsity
existed
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
based
upon
competitive
contact sport."
only
skill or
34 C.F.R.
selection of such teams is
the
106.41(b).
activity
involved
When a team is sponsored
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.

________________________________________________
___
added).
single-sex
The
regulation, therefore,
teams
opportunities,
the
calculus
in contact
athletes
sponsor a football
allows schools
sports.
therefore, it does
in
contact
For example, if a
team, it is
(emphasis
to operate
In counting participation
not make sense
participating
include only men s teams.
to
is a
to include in
sports
that
university chooses
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
accounting a
to
its student
contact sport that
body.
By
including in
requires very large
its
numbers of
participants, e.g., football, the district court skews the number
-91-91-
of
athletic
participants
university to
provide
--
making
both men's
it
and
impossible
women's teams
for
in
the
other
sports.
If
the
university is
from the
women
athletes competing
permitted to
calculation of
satisfied.
sports
field single-sex teams
participation rates, the
participants would
might be
in
increase
dramatically
for which
the
are excluded
proportion of
and prong
one
If so, the inquiry ends and Brown should be
judged to be in compliance.
2. Prong Two
2. Prong Two
The
to
district court concluded, and the majority appears
agree, that Brown failed to satisfy prong two because "merely
reducing program offerings to the overrepresented gender does not
constitute
program expansion
Majority Opinion at
18.
for the
This
underrepresented gender."
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
any absolute number of such opportunities.
conclusion with
school
respect to
does not mandate
The district court s
prong two, however,
implies that
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.
which
This
requirement presents
women
are
less
contends is the case.
dilemma for
interested in
a school
athletics,
as
in
Brown
Under such conditions, a school may be
-92-92-
Under
facing
the
district court's
interpretation,
a school
budgetary constraints must, in order to comply with prong
two, increase the opportunities available to the underrepresented

________
gender,
even
respecting
if
it
cannot
the school s
afford
right to
to
do
so.
determine the
Rather
than
role athletics
will
play in the future --
available
to
proportionate
majority
the
including reducing the opportunities
formerly
overrepresented
opportunities
demand
that
the
--
the
absolute
________
provided to the underrepresented
possible
is
sponsor an
district
number
court
of
ensure
and
the
opportunities
gender be increased.
see no
justification for this interpretation -- the regulation
intended to
athletics
gender to
on
protect against
discrimination, not
college campuses.
athletic program of any
for the courts, or
programs of a given
school
is not
to promote
required to
particular size.
the legislature, for that matter,
size.
It
is not
to mandate
The most that can be demanded is that
athletics be provided in a non-discriminatory manner.
Furthermore,
opportunities
given
the
to
claim
the
that
reduction
overrepresented
gender
in
the
is
an
unacceptable
prong test
method of
is contrary
majority opinion.
Brown Univ.,
____________
coming
into compliance
with the
to both
Cohen II and
_________
comments of
three
the
The majority quotes approvingly from Cohen

_____
879 F.
Supp. 185
(D.R.I.
v.
1995) (Cohen III), to

__________
____________________
unable to
not
be
succeed under the

enough
interested
second prong because

female
students
to
there may
achieve
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
altogether, it may elevate or
program
create the
requisite number of women s positions, it

may
demote
number
of
implement
or
eliminate the
men s
positions,
combination
requisite
or
it may
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
gender.
reducing
See Cohen II,

___ ________
opportunities for
991 F.2d at 898 n.15.
the
overrepresented
I fail
to see how
these
statements can
be reconciled
cannot satisfy prong two by
with
the claim
that Brown
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]
sex
[proportionately underrepresented]
have
been
fully
and
effectively
accommodated by the present program.
44 Fed. Reg. 71,413, 71,418 (December 11, 1979).
program
According
to the
district
violates
prong
three
court,
because
Brown's
members
athletics
of
the
proportionately underrepresented sex
sufficient for a
have demonstrated
university-funded varsity team
interest
that is not
in
-94-94-
fact being funded.
The district court asserts that this is not a
quota.
the other
satisfied
Brown, on
hand, argues that
prong three
is
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
should
be
isolation.
district
court's
narrow, literal
rejected
because
prong
three
First,
as Brown
points
interpretation
cannot
out, the
be
read
Regulation
in
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."

_________________________________
Fed.
-- in
Reg. 71,413, 71,414.
an absolute
underrepresented
overrepresented
sense --
gender,
Policy Interpretation,
_____________________
44
Thus, Brown contends, to meet "fully"
the interests
while
unmet
and abilities
interest
among
of an
the
gender continues, would contravene the governing
principle of "equally effective accommodat[ion]" of the interests
and abilities of students of both genders.
It
is
accommodate the
sex
is
worthwhile
to
note
interests and abilities of
an extraordinarily
requirement.
diverse
also
high
--
that
to
"fully"
perhaps impossibly
so
--
How could an academic institution with a large and
student
interests
of its
program,
it would
body
ever
students?
"fully"
Under
be surprising
-95-95-
accommodate
even
to find
the
athletic
the largest
athletic
that there
is not
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
stated
was
that "the mere fact
interested
provide
difficulty
recognized in
that there are
Cohen II,
_________
which
some female students
in a sport does not ipso facto require the school to

___________
a varsity
team
in
order
to
comply
with
the
third
benchmark."
advocates
Cohen II 991 F.2d at 898.

________
The balance that Cohen II

________
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."
This standard
large
may be practical
teams, but what of
Id. (internal citations omitted).

___
for certain sports
individual sports?
team may require only a single player.
any individual
fencing,
problem
that
to
so
"fully
on.
Therefore,
accommodate"
A "viable" tennis
The same could be said of
sport, including golf, track
archery, and
that require
the
and field, cycling,
we still
interests
have
the
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)
the
underrepresented
gender's
unmet
an institution must meet
reasonable
interest
and
ability as fully as it meets those of the overrepresented gender.
agree
with
Brown
that,
in
the
context
Interpretation, prong three is susceptible
of
OCR's
Policy
to at least these two
plausible interpretations.
Additionally, section 1681(a),
Congress as part of
a provision enacted
by
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,
prohibits the ordering of preferential
gender due
gender ratio
Title
contains
language
that
treatment on the basis of
to a failure of a program to substantially mirror the
of an institution.
IX's guarantee
that no
Specifically, with
person shall
respect to
be excluded
on the
basis
of sex from "participation
subjected
to
discrimination
activity receiving
in, denied the
under
Federal financial
any
benefits of or
education
assistance,"
20 U.S.C.
1681(a),
[n]othing
contained
interpreted
to
institution
to
[therein] shall
require any
grant
be
educational
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
participating
benefits
of
persons
in
or
any
of
the
sex
receiving
the
federally
program or activity,
supported
in comparison
with
the total number or percentage of persons

of that sex in any community.
-97-97-
program
or
Id.
___
the
1681(b).
Section 1681(b) provides yet another
district court's reading
of prong three
reason why
is troublesome and
why Brown's reading is a reasonable alternative.
Since
and
policy
manifestly
has
the applicable
interpretation,
regulation, 34 C.F.R.
44
Fed.
contrary to the objectives of
specifically delegated
to an
articulate standards governing a
Reg.
71,418,
106.41,
are
not
Title IX, and Congress
agency the
responsibility to
particular area, we must accord
the
ensuing regulation considerable
deference.
Chevron, U.S.A.
_______________
v. Natural Resources Defense Council, Inc., 467

_________________________________________
(1984).
844
That notwithstanding, where -- as here -- the resulting
regulation
is
susceptible
interpretation, we
chosen where
district
U.S. 837,
owe no
the choice is
court.
to
more
than
such deference to
made not
Therefore,
like
interpretation, we should review
one
the interpretation
by the agency
other
reasonable
cases
but by
of
the
statutory
the district court's reading de

__
novo.
____
B.
B.
The
The
District
District
Court's
Court's
Interpretation
Interpretation
and
and
the
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.
quota
First,
scheme.
otherwise
the
district court's
Second,
constitutional,
"exceedingly
even assuming
appellees
interpretation creates
such
have
persuasive justification," see

___
at 2274, for this particular quota scheme.
-98-98-
a quota
not
scheme is
pointed
to
an
Virginia, 116 S.Ct.

________
1. The Quota
1. The Quota
believe that the
court interprets
it, is a
three prong test,
quota.
I am in
as the district
square disagreement
with the majority, who believe that "[n]o aspect of the
regime
at issue
in
this
preferences or quotas."
way,
I agree
statute,"
that
case
Majority
"Title
IX
id., but I believe

___
court has made of it.
is
mandates
Opinion at 29.
not
an
Title IX
gender-based
Put
another
affirmative
that is exactly
action
what the district
As interpreted by the district court, the
test constitutes an affirmative action, quota-based scheme.
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.
am not persuaded by the majority's
three-part test does not
argument that the
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
rightly argues,
two and
court's
three.
application of
As Brown
the three-prong
the district
test requires
Brown to
allocate its athletic resources to meet the as-yet-unmet interest
of
a member
while
of the
underrepresented sex,
simultaneously
neglecting
any
individuals of the overrepresented
sex.
rate of interest in
any
institution,
women in
unmet
this case,
interest
among
To the extent
that the
athletics diverges between men and
women at
the
district
court's
interpretation
would
-99-99-
require
that
such
an
institution
student's
athletic interest and
athletic
interest
the other
student's interest
proportionality
an
an individual
completely
reasonable interest would have
treat
individual
female student's
differently:
to be met, by law,
______
would only
giving rise to the
one
student's
while meeting
aggravate the
legal duty.
male
lack of
"The injury in
cases
of
this kind
is
that
a 'discriminatory
classification
prevent[s] . . . competition on an equal footing.'"
S.
Ct. at
2104 (quoting
Contractors of America
________________________
(1993)).
be
Northeast Fla. Chapter, Assoc'd Gen'l

______________________________________
v.
Jacksonville,
____________
508
U.S.
656,
666
As a result, individual male and female students would
precluded
resources;
from
competing
they would
their own gender.
Cir.)
Adarand, 115
_______
(concluding
against
instead compete
each
other
for
only against
scarce
members of
Cf. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th

___ _______
_____
that
not
only
would
government
action
precluding competition between individuals of different races for
law
school
partial
admissions be
consideration
of
unconstitutional,
but
race
factors
among other
in fact
would
even
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
prong test does not
the three-
constitute a quota, because it
does not
"require any educational institution to grant preferential or

disparate treatment" to
the gender underrepresented
institution's athletic program.

Seventh Circuit, unlike
Id.
___
in that
However, in Kelley, the

______
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.
Seventh Circuit
did
of whether, had the defendant
not consider the question
-100-100-
The
The
majority
Interpretation nor
the
mandates statistical
________
claims
three ways.
participation
balancing."
The first prong
opportunities
numbers substantially
"neither
district court's
logic of this position escapes me.
in
that
for
the
Policy
interpretation of
it,
Opinion at 41.
The
Majority
A school can satisfy the test
is met if
male and
the school provides
female
students
proportionate to their enrollments.
prong surely requires statistical balancing.
in
This
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
members
It can
to
the
developing
interest and
of the underrepresented sex."
hardly be
denied
that this
abilities
44 Fed.
of
the
Reg. at 71,418.
prong requires
statistical
balancing as it is essentially a test that requires the school to
show that
prong.
it is moving in the
direction of satisfying the first
Establishing that a school is moving inexorably closer to
satisfying a
requirement that demands
only be done by
statistical balancing can
demonstrating an improvement in the
other
balance.
In
balancing.
Finally, the third prong, interpreted as the majority
advocates, dispenses
words,
the
second
prong
statistical
also
with statistical balancing only
requires
because it
____________________
University
of
Illinois
not
___
been in
compliance,
lack
of
compliance
with
the three-prong
automatic liability,
what steps would
rate,
Kelley
______
nor did
have been
pre-dates
Adarand and Virginia,

_______
________
test
alone
_____
would trigger
the Seventh Circuit
spell out
required of defendant.
the
Supreme
Court's
At
any
opinions
meaning that it suffers from
in
the same
defects as Cohen II.

________
-101-101-
choose to accord zero weight to one side of the
single
person
with
reasonable
unmet
balance.
interest
Even a
defeats
compliance.
This standard,
in
of
fact,
straightforward
quota test
prong
district court,
the unmet interests of
goes farther
one.
According
than
the
to
the
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
prongs.
In
amount to
my view it
a quota
because it
is the result of
involves multiple
the test, and
not the
number of steps involved, that should determine if a quota system
exists.
remains
Regardless
that
the
of how
test
many steps
requires
are involved,
proportionate
the fact
participation
opportunities for both sexes (prong one) unless one sex is simply
not
interested in participating (prong
that a quota with an exception for
three).
It
seems to me
situations in which there are
____________________
28.
The
problem
illustrated
with
with
the
majority s
a hypothetical
that would require proportionality

of the
local student
students.
This
argument
college
comparable to
that of
of the
It is no
a quota if an exception exists for schools whose gender
ratio
differs from
admit
every applicant
that of the
remains a quota because

female
ratio
admitted
prong one
three prong test and is, without a doubt, a quota.

less
be
admissions policy
between the gender
aged population and
policy is
can
of the
school to
but which
underrepresented gender.
the school is forced to
applicant until it
Similarly, the
local population
It
admit every
reaches the requisite proportion.
district court's interpretation
accommodate the interests of
until proportionality is reached.
-102-102-
requires the
every female student
insufficient interested students to
remains
quota.
All of
remain,29 and the school
only
by offering
the
allow the school to
negative
effects
can escape the quota under
preferential treatment to
meet it
of a
quota
prong three
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
court, and Congress' specific disavowal of any
district
intent to require
quotas as part of Title
of
showing an
IX, appellees have not met their
"exceedingly
gender-conscious exercise of
government authority.
burden
for this
As recently
set forth in Virginia, "[p]arties who seek to defend gender-based

________
government
action
must demonstrate
justification' for that action."
an
'exceedingly persuasive
Virginia, 116 S.Ct. at 2274.

________
While the Supreme Court in Virginia acknowledged that "[p]hysical

________
differences between
2276,
it went on
men and
to state
between men and women,
for
women . .
that such
. are enduring,"
"'[i]nherent differences'
we have come to appreciate,
celebration, but not for . .
individual's opportunity." Id.

___
id. at
___
remain cause
. artificial constraints on an
____________________
29.
Nor
does the
analysis.
be able
prong
of
the
test
change
the
That prong merely recognizes that a school may not

to
immediately,
program
second
meet the
and
quotas
therefore
of the
deems
first or
it
third
sufficient
to
prong
show
expansion that is responsive to the interests of the
underrepresented sex.
-103-103-
Neither
demonstrated
appellees
an "exceedingly
government action
case.
In
authority to the
genuine
--
have
they
litigation, id.
___
point to
to
of
Congress'
to
point
intent
by the
decision
this does not
or
regarding
to
district
delegate
amount to
invented in
any
___
view of
exceedingly persuasive justification
in light of section 1681(b)'s "no
with
for the
failed
not hypothesized
at 2275 --
have
in this
as applied
relevant agencies,
that is,
court
court has directed
indication
representation scheme
While
district
appellees
statement or
proportional
the
that the district
fact,
congressional
court.
nor
the explanations discussed in
quota" provision.
Cohen II to
________
We are left
the effect that
Congress
against
conducted hearings
women in
because Congress
on
education.
adopted Title IX
I believe
Policy
constitutional
construction
difficulties.
of a
statute
discrimination
little more
as a floor
than that,
amendment without
See Cohen II, 991 F.2d at 893.

___ ________
that the district
Interpretation's
subject of
There is
committee hearings or reports.
the
the
court's interpretation of
three-prong
test
"[W]here an
otherwise acceptable
would
raise serious
poses
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
court's
expressed a
specific
interpretation,
intent germane
Congress,
if
to the
anything,
aversion to quotas as a method to enforce Title IX.
district
expressed
an
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
athletic
will
disputes
programs, it
be relevant.
participation
majority
rates,
is
There
the opinion,
representation
inevitable that
is simply
no
levels,
offers
of
in
Opinion at 8-10.
other
and
way to
in
approvingly cites to
Cohen I, Cohen II,

________ _________
assess
abilities.
inconsistent
The figures
women
statistical evidence
guidance
statistics in Title IX claims.
the majority
evaluations conducted
the
interest
opinion, however,
respect to the role of
Majority
over
The
with
Early in
the statistical
and
Cohen III.
__________
in question demonstrate
that women s participation in athletics is less than proportional
to their enrollment.
level
adopts
Later
of interest among
much
more
in the opinion,
women at Brown
critical
however, when
is at
attitude
the
issue, the court
towards
statistical
evidence: "[T]here exists the
danger that, rather than providing
interest
true
measure
of
women s
in
sports,
statistical
evidence purporting to reflect women s interest instead
provides
only a
has been
measure of the very
discrimination that is and
-105-105-
the
basis for women s lack of opportunity."
53.
Majority Opinion at
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.
assess
The majority offers no guidance to a
the levels
three-prong
appears to
of interest
test, even
as
allow the school
of its
school seeking to
students.
interpreted by
Although the
the district
the opportunity to
court,
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.
Gender Equity Study and
student
Brown sought
to introduce
the NCAA
the results of an undergraduate
interest in athletics, but
was not permitted
poll on
to do so.
The majority is unsympathetic to Brown's claim that the disparity
between
athletic
gender-based
Brown's
opportunities
difference in
for
men and
interest
levels.
women
reflect
Indeed,
despite
attempt to present evidence in support of its claim, the
majority
assertion."
characterizes
Brown's
argument
Majority Opinion at 51.30
____________________
as
an
"unproven
30.
Among
the
evidence
submitted
by
Brown
are:
admissions data showing greater athletic interest among

applicants than
female applicants;
(ii) college
(i)
male
board data
-106-106-
Furthermore, the majority recognizes
are
entitled
to
use
any
nondiscriminatory
choosing to determine athletic interests.
that institutions
method
of
their
Majority Opinion at 53
n.15.
If
statistical evidence of
considered by courts,
interest levels is not
however, there
is no way
determine whether they are in compliance.
to be
for schools
to
Any studies or surveys
they might conduct in order to assess their own compliance would,
in
the
the event of litigation, be deemed irrelevant.
efforts made by the
academic institution, the
Regardless of
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.
college life is
now
been carved
longer in full
Virtually
every other
entrusted to the institution,
out as an
exception and
control of its program.
aspect of
but athletics has
the university
Unless the
is no
two genders
____________________
showing
greater
athletic interest
rates by prospective male

(iii)
data
from
Program at UCLA
men
Brown offers
Brown
Institutional
demonstrate
athletic interest
telephone survey of 500
undergraduates
the
intramural and
among
that
reveals that
pool of
excess of
interested, qualified
club participation
rates that
higher participation rates among men than women;
walk-on
interest
Research
women participation opportunities in
representation in
students; (v)
(vi)
Cooperative
indicating greater
selected
prior participation
applicants than female applicants;
than women; (iv) an independent
randomly
their
the
and
and try-out
among
participation
men
rates
numbers
than
that
women;
that
show
reflect a
(vii)
much
high
lower
greater
school
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
time
have the ability to demand a varsity level team at any
if they can show sufficient interest.
is given
sport, the
to the sustainability of the
university s view on
Apparently no weight
interest, the cost of the
the desirability of
the sport,
and so on.
IV. FIRST AMENDMENT ISSUE

IV. FIRST AMENDMENT ISSUE
Finally,
University
is
protected
First
it
is
private
Amendment
important
institution
right
to
to
remember
with a
choose
that
Brown
constitutionally
its
curriculum.
Athletics
are part of that curriculum.
of the First Amendment cannot
this
court should
private
be used to justify discrimination,
not forget that
institution s
Although the protections
right
to
it has
mould
a duty
its
own
to protect a
educational
environment.
The majority pays
lip service to these concerns in the
final pages of its long opinion, stating
that
that " we are a society
cherishes academic freedom and recognizes that universities
deserve great leeway in their operations. "
69
(quoting Cohen II,

________
academic freedom
991 F.2d at 906),
and "[o]ur respect for
and reluctance to interject
conduct of university affairs
as
Majority Opinion at
much freedom as possible."
ourselves into the
counsels that we give universities
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
choose
freedom
the
established a
to craft
priorities of
its
that
legal rule that
own athletic
program.
program
Instead, they
and to
have
straightjackets college athletics
programs by curtailing
offer.
their freedom to
choose the sports
they
-109-109-

Cohen v. Brown University, 1st Cir. (1996)

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Cohen v. Brown University, 1st Cir. (1996)

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Cohen v. Brown University, 1st Cir. (1996)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS

AMY COHEN, ET AL.,

opinion of this Court

"women, id. at 981.".

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

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

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

line 17, insert "for women" between "treatment"

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

On page 55, lines 9 and 10, delete "in varsity competition,"

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,

between "Title IX" and "is".

page 68, line 2,

paragraph beginning with

paragraph beginning with

"Brown first contends".

page 68, line 9,

"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".

line 22, cite

On page 89, replace text on line 1 with: "one

"athletic opportunities for

page 89, lines 11-15:

Delete two sentences:

that the school sponsors

allow both sexes to try-out.

one team for

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 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 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".

UNITED STATES COURT OF APPEALS

AMY COHEN, ET AL.,

BROWN UNIVERSITY, ET AL.,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Torruella, Chief Judge,

Joan A. Lukey and Walter B. Connolly, Jr., with

Miller, Canfield, Paddock & Stone,

Beverly E. Ledbetter, General Counsel, Brown

C. Michaelson, Jeffrey S. Michaelson and Michaelson & Michaelson

whom Amy Folsom Kett,

Bonnet, Hogan & Hartson L.L.P.