# Cohen v. Brown University > Court of Appeals for the First Circuit ยท November 21, 1996 URL: https://www.frixlaw.com/law-library/cases/2964418 ## Case - **Court:** Court of Appeals for the First Circuit - **Decided:** November 21, 1996 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2964418 ## Opinion text USCA1 Opinion UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT __________________ No. 95-2205 AMY COHEN, ET AL., Plaintiffs - Appellees, v. BROWN UNIVERSITY, Defendants - Appellants. __________________ ERRATA SHEET The opinion of this Court issued on November 21, 1996, is amended as follows: On page 9, line 15, replace "women. Id. at 981." with ___ "women, id. at 981.". ___ On page 10, line 18, delete extra space between "sports" and "--". On page 11, line 9, delete "id.,". ___ On page 11, line 12, delete "totals," id." and replace with ___ "totals." Id.". ___ On page 11, line 16, delete "id.,". ___ On page 15, line 36, delete "then" and replace with "former". On page 24, line 13, insert comma after "and". On page 26, line 14, delete "mere" and replace with "bare". On page 38, line 17, insert "for women" between "treatment" and "by". On page 42, line 18, replace "to women" with "for women". On page 43, line 8, delete "Cf." and replace it with "See". ___ ___ On page 47, line 7, delete "athletics" before "opportunities". On page 55, lines 9 and 10, delete "in varsity competition," and replace it with "at the varsity level,". On page 59, line 19, delete "(1989)". On page 62, line 5, delete "(1973)". On page 62, line 6, delete "(1989)". On page 64, lines 28 and 29, replace "is merely" with "is, in effect,". On page 65, line 21, insert "as it applies to athletics" between "Title IX" and "is". On page 68, line 2, insert a new paragraph beginning with "Brown first contends". On page 68, line 9, insert a new paragraph beginning with "Brown also suggests". On page 79, line 22, replace "Court" with "court". On page 80, lines 3 and 6, replace "Court" with "court". On page 86, lines 5 and 13, replace "Court" with "court". On page 88, line 22, cite to the C.F.R. should be: "34 C.F.R. 106.41(b) (1995)". On page 89, replace text on line 1 with: "one sex, however, and where "athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to". On page 89, lines 11-15: Delete two sentences: "When the university chooses a non-contact sport, 34 C.F.R. 106.41(b) requires that the school sponsors one team for each gender, or allow both sexes to try-out. If the university chooses a contact sport, however, try-outs can be restricted to one sex.". On page 89, line 17, delete "hockey". On page 95, last line, delete comma after "the interpretation chosen". On page 96, line 10, replace "Appellees" with "appellees". On page 98, line 17, replace "Appellees" with "appellees". On page 100, line 19, replace "Appellees" with "appellees". On page 101, lines 8 and 11, replace "Appellees" with "appellees". -2- 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". -3- UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-2205 AMY COHEN, ET AL., Plaintiffs - Appellees, v. BROWN UNIVERSITY, ET AL., Defendants - Appellants. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________ ____________________ Before Torruella, Chief Judge, ___________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ _____________________ Joan A. Lukey and Walter B. Connolly, Jr., with whom Hale ______________ ________________________ ____ and Dorr, Alison B. Marshall, Miller, Canfield, Paddock & Stone, ________ __________________ _________________________________ Beverly E. Ledbetter, General Counsel, Brown University, Julius _____________________ ______ C. Michaelson, Jeffrey S. Michaelson and Michaelson & Michaelson _____________ ______________________ _______________________ were on brief for appellants. Martin Michaelson, with whom Amy Folsom Kett, Suzanne M. __________________ ________________ __________ Bonnet, Hogan & Hartson L.L.P. and Sheldon E. Steinbach, General ______ ______________________ ____________________ Counsel, American Council on Education, were on brief for American Council on Education, Association of American Universities, National Association of Independent Colleges and Universities, and National Association of State Universities and Land-Grant Colleges, amici curiae. George A. Davidson, Carla A. Kerr, Seth D. Rothman and ___________________ ______________ ________________ Hughes Hubbard & Reed on brief for Baylor University, Boston _______________________ University, Colgate University, College of the Holy Cross, Colorado State University, Fairfield University, George Washington University, John Hopkins University, Lafayette College, New York University, Saint Peter's College, Southern Methodist University, Tulane University, University of Arkansas, University of Nebraska, University of Notre Dame, and Wake Forest University, amici curiae. Melinda Ledden Sidak and Anita K. Blair on brief for The ____________________ _______________ Independent Women's Forum, amicus curiae. Stephen S. Ostrach, Todd S. Brilliant and New England Legal __________________ _________________ _________________ -1- Foundation on brief for American Baseball Coaches Association, __________ College Swim Coaches Association of America, National Wrestling Coaching Association and United States Water Polo, amici curiae. Lynette Labinger, with whom Roney & Labinger, Amato A. _________________ __________________ _________ DeLuca, DeLuca & Weizenbaum, Ltd., Raymond Marcaccio, Blish & ______ __________________________ _________________ _______ Cavanagh, Sandra L. Duggan, Sandra L. Duggan, Esq., P.C., Arthur ________ ________________ ____________________________ ______ H. Bryant, Leslie A. Brueckner, and Trial Lawyers for Public __________ ____________________ __________________________ Justice, P.C. were on brief for appellees. _____________ Deborah L. Brake, with whom Marcia D. Greenberger, Judith C. ________________ _____________________ _________ Appelbaum and National Women's Law Center were on brief for _________ _____________________________ National Women's Law Center, American Association of University Women/AAUW Legal Advocacy Fund, American Civil Liberties Union Women's Rights Project, California Women's Law Center, Center For Women Policy Studies, Connecticut Women's Education and Legal Fund, Equal Rights Advocates, Feminist Majority Foundation, Girls Incorporated, National Association for Girls and Women in Sport, National Association for Women in Education, National Coalition for Sex Equity in Education, National Commission on Working Women, National Council of Administrative Women in Education, National Education Association, National Organization for Women Foundation, Now Legal Defense and Education Fund, National Softball Coaches Association, Northwest Women's Law Center, Parents for Title IX, Rhode Island Affiliate American Civil Liberties Union, Women Employed, Women's Basketball Coaches Association, Women's Law Project, Women's Legal Defense Fund, Women's Sports Foundation, and YWCA of the USA, amici curiae. Deval L. Patrick, Assistant Attorney General, Isabelle Katz _________________ _____________ Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey and _______ ________________ Lisa W. Edwards, Attorneys, Department of Justice, on brief for _______________ the United States, amicus curiae. ____________________ November 21, 1996 ____________________ -2- -2- BOWNES, Senior Circuit Judge. This is a class BOWNES, Senior Circuit Judge. _____________________ action lawsuit charging Brown University, its president, and its athletics director (collectively "Brown") with discrimination against women in the operation of its intercollegiate athletics program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1688 ("Title IX"), and its implementing regulations, 34 C.F.R. 106.1-106.71. The plaintiff class comprises all present, future, and potential Brown University women students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown. This suit was initiated in response to the demotion in May 1991 of Brown's women's gymnastics and volleyball teams from university-funded varsity status to donor-funded varsity status. Contemporaneously, Brown demoted two men's teams, water polo and golf, from university-funded to donor- funded varsity status. As a consequence of these demotions, all four teams lost, not only their university funding, but most of the support and privileges that accompany university- funded varsity status at Brown. Prior to the trial on the merits that gave rise to this appeal, the district court granted plaintiffs' motion for class certification and denied defendants' motion to dismiss. Subsequently, after hearing fourteen days of testimony, the district court granted plaintiffs' motion for -3- -3- a preliminary injunction, ordering, inter alia, that the _____ ____ women's gymnastics and volleyball teams be reinstated to university-funded varsity status, and prohibiting Brown from eliminating or reducing the status or funding of any existing women's intercollegiate varsity team until the case was resolved on the merits. Cohen v. Brown Univ., 809 F. Supp. _____ ___________ 978, 1001 (D.R.I. 1992) ("Cohen I"). A panel of this court _______ affirmed the district court's decision granting a preliminary injunction to the plaintiffs. Cohen v. Brown Univ., 991 F.2d _____ ___________ 888, 907 (1st Cir. 1993) ("Cohen II"). In so doing, we _________ upheld the district court's analysis and ruled that an institution violates Title IX if it ineffectively accommodates its students' interests and abilities in athletics under 34 C.F.R. 106.41(c)(1) (1995), regardless of its performance with respect to other Title IX areas. Id. ___ at 897. On remand, the district court determined after a lengthy bench trial that Brown's intercollegiate athletics program violates Title IX and its supporting regulations. Cohen v. Brown Univ., 879 F. Supp. 185, 214 (D.R.I. 1995) _____ ____________ ("Cohen III"). The district court ordered Brown to submit _________ within 120 days a comprehensive plan for complying with Title IX, but stayed that portion of the order pending appeal. Id. The district court subsequently issued a ___ modified order, requiring Brown to submit a compliance plan -4- -4- within 60 days. Modified Order of May 4, 1995. This action was taken to ensure that the Order was "final" for purposes of this court's jurisdiction, and to expedite the appeal process. Id. Finding that Brown's proposed compliance plan ___ was not comprehensive and that it failed to comply with the opinion and order of Cohen III, the district court rejected _________ the plan and ordered in its place specific relief consistent with Brown's stated objectives in formulating the plan. Order of August 17, 1995 at 11. The court's remedial order required Brown to elevate and maintain at university-funded varsity status the women's gymnastics, fencing, skiing, and water polo teams. Id. at 12. The district court's decision ___ to fashion specific relief was made, in part, to avoid protracted litigation over the compliance plan and to expedite the appeal on the issue of liability. Id. at 11. ___ The district court entered final judgment on September 1, 1995, and on September 27, 1995, denied Brown's motion for additional findings of fact and to amend the judgment. This appeal followed. Brown claims error in certain evidentiary rulings made during the trial and in the district court's order of specific relief in place of Brown's proposed compliance plan. In addition, and as in the previous appeal, Brown challenges on constitutional and statutory grounds the test employed by the district court in determining whether Brown's -5- -5- intercollegiate athletics program complies with Title IX. In the first appeal, a panel of this court elucidated the applicable legal framework, upholding the substance of the district court's interpretation and application of the law in granting plaintiffs' motion for a preliminary injunction,1 and rejecting essentially the same legal arguments Brown makes here. Brown contends that we are free to disregard the prior panel's explication of the law in Cohen II. Brown's _________ efforts to circumvent the controlling effect of Cohen II are ________ unavailing, however, because, under the law of the case doctrine, we are bound in this appeal, as was the district court on remand, by the prior panel's rulings of law. While we acknowledge that the law of the case doctrine is subject to exceptions, we conclude that none applies here, and that the decision rendered by the prior panel in the first appeal is not, as Brown claims, "legally defective." Accordingly, we decline Brown's invitation to undertake plenary review of issues decided in the previous appeal and treat Cohen II as _________ controlling authority, dispositive of the core issues raised here. ____________________ 1. The prior panel upheld the district court's rulings in all respects save one. We held that the district court erred in placing upon Brown the burden of proof under prong three of the three-part test used to determine whether an intercollegiate athletics program complies with Title IX, discussed infra. Cohen II, 991 F.2d at 903. _____ ________ -6- -6- We find no error in the district court's factual findings or in its interpretation and application of the law in determining that Brown violated Title IX in the operation of its intercollegiate athletics program. We therefore affirm in all respects the district court's analysis and rulings on the issue of liability. We do, however, find error in the district court's award of specific relief and therefore remand the case to the district court for reconsideration of the remedy in light of this opinion. I. I. The relevant facts, legal principles, and procedural history of this case have been set forth in exhaustive detail in the previous opinions issued in this case. Thus, we recite the facts as supportably found by the district court in the course of the bench trial on the merits in a somewhat abbreviated fashion. As a Division I institution within the National Collegiate Athletic Association ("NCAA") with respect to all sports but football, Brown participates at the highest level of NCAA competition.2 Cohen III, 879 F. Supp. at 188 . Brown _________ operates a two-tiered intercollegiate athletics program with respect to funding: although Brown provides the financial resources required to maintain its university-funded varsity ____________________ 2. Brown's football team competes in Division I-AA, the second highest level of NCAA competition. Cohen III, 879 F. _________ Supp. at 188 n.4. -7- -7- teams, donor-funded varsity athletes must themselves raise the funds necessary to support their teams through private donations. Id. at 189. The district court noted that the ___ four demoted teams were eligible for NCAA competition, provided that they were able to raise the funds necessary to maintain a sufficient level of competitiveness, and provided that they continued to comply with NCAA requirements. Id. at ___ 189 n.6. The court found, however, that it is difficult for donor-funded varsity athletes to maintain a level of competitiveness commensurate with their abilities and that these athletes operate at a competitive disadvantage in comparison to university-funded varsity athletes. Id. at ___ 189. For example, the district court found that some schools are reluctant to include donor-funded teams in their varsity schedules3 and that donor-funded teams are unable to obtain varsity-level coaching, recruits, and funds for travel, equipment, and post-season competition. Id. at 189-90. ___ Brown's decision to demote the women's volleyball and gymnastics teams and the men's water polo and golf teams from university-funded varsity status was apparently made in response to a university-wide cost-cutting directive. Cohen _____ I, 809 F. Supp. at 981. The district court found that Brown _ ____________________ 3. Two schools declined to include Brown in future varsity schedules when women's volleyball was demoted to donor-funded status. Cohen II, 991 F.2d at 892 n.2; Cohen I, 809 F. Supp. ________ _______ at 993. -8- -8- saved $62,028 by demoting the women's teams and $15,795 by demoting the men's teams, but that the demotions "did not appreciably affect the athletic participation gender ratio." Cohen III at 187 n.2. _________ Plaintiffs alleged that, at the time of the demotions, the men students at Brown already enjoyed the benefits of a disproportionately large share of both the university resources allocated to athletics and the intercollegiate participation opportunities afforded to student athletes. Thus, plaintiffs contended, what appeared to be the even-handed demotions of two men's and two women's teams, in fact, perpetuated Brown's discriminatory treatment of women in the administration of its intercollegiate athletics program. In the course of the preliminary injunction hearing, the district court found that, in the academic year 1990-91, Brown funded 31 intercollegiate varsity teams, 16 men's teams and 15 women's teams, Cohen I, _______ 809 F. Supp. at 980, and that, of the 894 undergraduate students competing on these teams, 63.3% (566) were men and 36.7% (328) were women, id. at 981. During the same academic ___ year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. Id. The district court ___ also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams _____ ____ were established before 1927, virtually all of the women's -9- -9- varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. Id. The only women's ___ varsity team created after this period was winter track, in 1982. Id. ___ In the course of the trial on the merits, the district court found that, in 1993-94, there were 897 students participating in intercollegiate varsity athletics, of which 61.87% (555) were men and 38.13% (342) were women. Cohen III, 879 F. Supp. at 192 . During the same period, __________ Brown's undergraduate enrollment comprised 5,722 students, of which 48.86% (2,796) were men and 51.14% (2,926) were women. Id. The district court found that, in 1993-94, Brown's ___ intercollegiate athletics program consisted of 32 teams, 16 men's teams and 16 women's teams. Id. Of the university- ___ funded teams, 12 were men's teams and 13 were women's teams; of the donor-funded teams, three were women's teams and four were men's teams. Id. At the time of trial, Brown offered ___ 479 university-funded varsity positions for men, as compared to 312 for women; and 76 donor-funded varsity positions for men, as compared to 30 for women. Id. at 211 . In 1993-94, ___ then, Brown's varsity program -- including both university- and donor-funded sports -- afforded over 200 more positions for men than for women. Id. at 192 . Accordingly, the ___ district court found that Brown maintained a 13.01% disparity between female participation in intercollegiate athletics and -10- -10- female student enrollment, id. at 211 , and that "[a]lthough ___ the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes," id. at 189 . ___ In computing these figures, the district court counted as participants in intercollegiate athletics for purposes of Title IX analysis those athletes who were members of varsity teams for the majority of the last complete season. Id. at 192 . Brown argued at trial that "there is no ___ consistent measure of actual participation rates because team size varies throughout the athletic season," and that "there is no consistent measure of actual participation rates because there are alternative definitions of 'participant' that yield very different participation totals." Id. ___ Reasoning that "[w]here both the athlete and coach determine that there is a place on the team for a student, it is not for this Court to second-guess their judgment and impose its own, or anyone else's, definition of a valuable or genuine varsity experience," the district court concluded that "[e]very varsity team member is therefore a varsity 'participant.'" Id. (original emphasis omitted). Thus, the ___ district court held that the "participation opportunities" offered by an institution are measured by counting the actual participants on ______ ____________ intercollegiate teams. The number of -11- -11- participants in Brown's varsity athletic program accurately reflects the number of participation opportunities Brown offers because the University, through its practices "predetermines" the number of athletic positions available to each gender. Id. at 202-03 . ___ The district court found from extensive testimony that the donor-funded women's gymnastics, women's fencing and women's ski teams, as well as at least one women's club team, the water polo team, had demonstrated the interest and ability to compete at the top varsity level and would benefit from university funding.4 Id. at 190 . ___ The district court did not find that full and ___ effective accommodation of the athletics interests and abilities of Brown's female students would disadvantage Brown's male students. II. II. Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C.A. ____________________ 4. The district court noted that "there may be other women's club sports with sufficient interest and ability to warrant elevation to varsity status," but that plaintiffs did not introduce at trial substantial evidence demonstrating the existence of other women's club teams meeting the criteria. Cohen III, 879 F. Supp. at 190 n.14. _________ -12- -12- 1681(a) (West 1990). As a private institution that receives federal financial assistance, Brown is required to comply with Title IX. Title IX also specifies that its prohibition against gender discrimination shall not "be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist" between the total number or percentage of persons of that sex participating in any federally supported program or activity, and "the total number or percentage of persons of that sex in any community, State, section, or other area." 20 U.S.C.A. 1681(b) (West 1990). Subsection (b) also provides, however, that it "shall not be construed to prevent the consideration in any . . . proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex." Id. ___ Applying 1681(b), the prior panel held that Title IX "does not mandate strict numerical equality between the gender balance of a college's athletic program and the gender balance of its student body." Cohen II, 991 F.2d at 894. _________ The panel explained that, while evidence of a gender-based disparity in an institution's athletics program is relevant to a determination of noncompliance, "a court assessing Title -13- -13- IX compliance may not find a violation solely because there ______ is a disparity between the gender composition of an educational institution's student constituency, on the one hand, and its athletic programs, on the other hand." Id. at ___ 895. Congress enacted Title IX in response to its finding -- after extensive hearings held in 1970 by the House Special Subcommittee on Education -- of pervasive discrimination against women with respect to educational opportunities. 118 Cong. Rec. 5804 (1972) (remarks of Sen. Bayh); North Haven Bd. of Educ. v. Bell, 456 U.S. 512 , 523 _________________________ ____ n.13 (1982). Title IX was passed with two objectives in mind: "to avoid the use of federal resources to support discriminatory practices," and "to provide individual citizens effective protection against those practices." Cannon v. University of Chicago, 441 U.S. 677, 704 (1979). ______ ______________________ To accomplish these objectives, Congress directed all agencies extending financial assistance to educational institutions to develop procedures for terminating financial assistance to institutions that violate Title IX. 20 U.S.C. 1682. The agency responsible for administering Title IX is the United States Department of Education ("DED"), through -14- -14- its Office for Civil Rights ("OCR").5 Congress expressly delegated to DED the authority to promulgate regulations for determining whether an athletics program complies with Title IX. Pub. L. No. 93-380, 88 Stat. 612 (1974).6 The regulations specifically address athletics at 34 C.F.R. 106.37(c) and 106.41. The regulation at issue in this case, 34 C.F.R. 106.41 (1995), provides: (a) General. No person shall, on the _______ basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. (b) Separate teams. Notwithstanding ______________ the requirements of paragraph (a) of this ____________________ 5. Agency responsibility for administration of Title IX shifted from the Department of Health, Education and Welfare ("HEW") to DED when HEW split into two agencies, DED and the Department of Health and Human Services. The regulations and agency documents discussed herein were originally promulgated by HEW, the administering agency at the time, and later adopted by the present administering agency, DED. See Cohen ___ _____ II, 991 F.2d at 895; Cohen III, 879 F. Supp. at 194 -95 n.23. __ _________ For simplicity, we treat DED as the promulgating agency. 6. HEW apparently received an unprecedented 9,700 comments on the proposed Title IX athletics regulations, see Haffer v. ___ ______ Temple Univ. of the Commonwealth Sys. of Higher Educ., 524 F. _____________________________________________________ Supp. 531, 536 n.9 (1981) (citing Thomas A. Cox, Intercollegiate Athletics and Title IX, 46 Geo. Wash. L. Rev. ______________________________________ 34, 40 (1977) ("Cox")), prompting former HEW Secretary Caspar Weinberger to remark, "I had not realized until the comment period that athletics is the single most important thing in the United States," id. (citing Cox at 34, quoting N.Y. ___ Times, June 27, 1975, at 16, col. 4). -15- -15- section, a recipient may operate or sponsor separate teams for members of each sex where selection of such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact. c) Equal Opportunity. A recipient _________________ which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation for coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. -16- -16- In the first appeal, this court held that an institution's failure effectively to accommodate both genders under 106.41(c)(1) is sufficient to establish a violation of Title IX. Cohen II, 991 F.2d at 897. ________ In 1978, several years after the promulgation of the regulations, OCR published a proposed "Policy Interpretation," the purpose of which was to clarify the obligations of federal aid recipients under Title IX to provide equal opportunities in athletics programs. "In particular, this Policy Interpretation provides a means to assess an institution's compliance with the equal opportunity requirements of the regulation which are set forth at [34 C.F.R. 106.37(c) and 106.41(c)]." 44 Fed. Reg. at 71,415. After considering a large number of public comments, OCR published the final Policy Interpretation. 44 Fed. Reg. 71,413-71,423 (1979). While the Policy Interpretation covers other areas, this litigation focuses on the "Effective Accommodation" section, which interprets 34 C.F.R. 106.41(c)(1), the first of the non-exhaustive list of ten factors to be considered in determining whether equal athletics opportunities are available to both genders. The Policy Interpretation establishes a three-part test, a two-part test, and factors to be considered in determining compliance under 34 C.F.R. 106.41(c)(1). At issue in this appeal is the proper -17- -17- interpretation of the first of these, the so-called three-part test,7 which inquires as follows: (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. 44 Fed. Reg. at 71,418. The district court held that, "because Brown maintains a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment, it cannot gain the protection of prong one." Cohen III, 879 F. _________ Supp. at 211. Nor did Brown satisfy prong two. While acknowledging that Brown "has an impressive history of program _______ expansion," the district court found that Brown failed to ____________________ 7. For clarification, we note that the cases refer to each part of this three-part test as a "prong" or a "benchmark." Prong one is also called the "substantial proportionality test." -18- -18- demonstrate that it has "maintained a continuing practice of __________ ________ intercollegiate program expansion for women, the underrepresented sex." Id. The court noted further that, because merely reducing ___ program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender, the fact that Brown has eliminated or demoted several men's teams does not amount to a continuing practice of program expansion for women. Id. As to prong three, the district court found that ___ Brown had not "fully and effectively accommodated the interest _____ and ability of the underrepresented sex 'to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes.'" Id. ___ (quoting the Policy Interpretation, 44 Fed. Reg. at 71,417). On January 16, 1996, DED released a "Clarification Memorandum," which does not change the existing standards for compliance, but which does provide further information and guidelines for assessing compliance under the three-part test. The Clarification Memorandum contains many examples illustrating how institutions may meet each prong of the three-part test and explains how participation opportunities are to be counted under Title IX. The district court found that Brown predetermines the approximate number of varsity positions available to men and women, and, thus, that "the concept of any measure of unfilled but available athletic slots does not comport with reality." -19- -19- Cohen III, 879 F. Supp. at 203 n.36. The district court _________ concluded that intercollegiate athletics opportunities "means real opportunities, not illusory ones, and therefore should be measured by counting actual participants." Id. at 204 (internal ______ ____________ ___ quotation marks and citations omitted). Title IX is an anti-discrimination statute, modeled after Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d ("Title VI").8 See Cannon, 441 U.S. at 696 ("The drafters of ___ ______ Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years."). Thus, Title IX and Title VI share the same constitutional underpinnings. See Jeffrey H. Orleans, An End To The Odyssey: ___ ______________________ Equal Athletic Opportunities For Women, 3 Duke J. Gender L. & _______________________________________ Pol'y 131, 133-34 (1996). Although the statute itself provides for no remedies beyond the termination of federal funding, the Supreme Court has determined that Title IX is enforceable through an implied private right of action, Cannon, 441 U.S. at 703 , and that ______ damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992). ________ __________________________ The right to injunctive relief under Title IX appears to have been impliedly accepted by the Supreme Court in Franklin. Id. at ________ ___ 64-66, 71-73. In addition, a majority of the Court in Guardians _________ ____________________ 8. Title VI prohibits discrimination on the basis of race, color, or national origin in institutions benefitting from federal funds. -20- -20- Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983), agreed that _____ ___________________ injunctive relief and other equitable remedies are appropriate for violations of Title VI. According to the statute's senate sponsor, Title IX was intended to provide for the women of America something that is rightfully theirs -- an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work. 118 Cong. Rec. 5808 (1972) (remarks of Sen. Bayh) (quoted ______ in Haffer, 524 F. Supp. at 541). __ ______ III. III. In Cohen II, a panel of this court squarely rejected _________ Brown's constitutional and statutory challenges to the Policy Interpretation's three-part test, upholding the district court's interpretation of the Title IX framework applicable to intercollegiate athletics, Cohen II, 991 F.2d at 899-902, as well ________ as its grant of a preliminary injunction in favor of the plaintiffs, id. at 906-07. Despite the fact that it presents ___ substantially the same legal arguments in this appeal as were raised and decided in the prior appeal, Brown asserts that there is "no impediment" to this court's plenary review of these decided issues. We disagree. The law of the case doctrine precludes relitigation of the legal issues presented in successive stages of a single -21- -21- case once those issues have been decided. See 1B James W. Moore ___ et al., Moore's Federal Practice 0.404[1] (2d ed. 1993) (hereinafter "Moore"). "The doctrine of the law of the case directs that a decision of an appellate court on an issue of law, unless vacated or set aside, governs the issue during all subsequent stages of litigation in the nisi prius court and ____ _____ thereafter on any further appeal." Commercial Union Ins. Co. v. _________________________ Walbrook Ins. Co., 41 F.3d 764, 769 (1st. Cir. 1994) (citing __________________ United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert. _____________ _______________ _____ denied, 502 U.S. 862 (1991)). The reviewing court's mandate ______ "constitutes the law of the case on such issues of law as were actually considered and decided by the appellate court, or as were necessarily inferred from the disposition on appeal." Commercial Union Ins. Co., 41 F.3d at 770 (citing 1B Moore at _________________________ 0.404[10]). The doctrine requires a trial court on remand to dispose of the case in accordance with the appellate court's mandate by implementing "'both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces,'" United States v. Connell, 6 F.3d _____________ _______ 27, 30 (1st Cir. 1993) (quoting United States v. Kikumura, 947 _____________ ________ F.2d 72, 76 (3d Cir. 1991)), and binds newly constituted panels to prior panel decisions on point, e.g., Irving v. United States, ____ ______ _____________ 49 F.3d 830, 833-34 (1st Cir. 1995); Metcalf & Eddy, Inc. v. _____________________ Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935 , 939 n.3 (1st _____________________________________ Cir. 1993). -22- -22- While we have acknowledged that there are exceptions to the law of the case doctrine, we have emphasized that the circumstances in which they apply are rare. As have a number of other circuits, we have determined that issues decided on appeal should not be reopened "'unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.'" Rivera-Martinez, 931 F.2d at 151 (quoting White v. _______________ _____ Murtha, 377 F.2d 428, 432 (5th Cir. 1967)) (other citations ______ omitted). Brown's argument that the Supreme Court's recent decision in Adarand Constr., Inc. v. Pena, --- U.S. ---, 115 S. _____________________ ____ Ct. 2097 (1995) ("Adarand"), controls this case necessarily _______ presumes that Adarand constitutes a contrary intervening decision _______ by controlling authority on point that (i) undermines the validity of Cohen II; (ii) compels us to depart from the law of ________ the case doctrine; and (iii) therefore mandates that we reexamine Brown's equal protection claim. We have narrowly confined the "intervening controlling authority exception" to Supreme Court opinions, en __ banc opinions of this court, or statutory overrulings. Irving, ____ ______ 49 F.3d at 834 . We have also recognized that this exception may apply "in those rare situations where newly emergent authority, although not directly controlling, nevertheless offers a -23- -23- convincing reason for believing that the earlier panel, in light of the neoteric developments, would change its course." Id. ___ (internal quotation marks and citation omitted). The law of the case doctrine is a prudential rule of policy and practice, rather than "an absolute bar to reconsideration []or a limitation on a federal court's power." Rivera-Martinez, 931 F.2d at 150-51 . Thus, we have not construed _______________ the doctrine as "an inflexible straitjacket that invariably requires rigid compliance." Northeast Utils. Serv. Co. v. ____________________________ Federal Energy Regulatory Comm'n, 55 F.3d 686, 688 (1st Cir. __________________________________ 1995). Nevertheless, the doctrine serves important goals and must be "treated respectfully and, in the absence of exceptional circumstances, applied according to its tenor." Rivera-Martinez, _______________ 931 F.2d at 151 . Accordingly, we have held that only a few exceptional circumstances can overcome the interests served by adherence to the doctrine and these exceptions are narrowly circumscribed. See id.; see also United States v. Reveron ___ ___ ___ ____ ______________ _______ Martinez, 836 F.2d 684 , 687 n.2 (1st Cir. 1988) ("To be sure, ________ there may be occasions when courts can -- and should -- loosen the iron grip of stare decisis. But any such departure 'demands _____ _______ special justification.'") (quoting Arizona v. Rumsey, 467 U.S. _______ ______ 203, 212 (1984)).9 ____________________ 9. The law of the case doctrine is "akin to the doctrines of collateral estoppel, res judicata, and stare decisis," Joan __________ ________ ___ ________ _____ _______ Steinman, Law Of The Case: A Judicial Puzzle In Consolidated _______________ __________________________________ And Transferred Cases And In MultiDistrict Litigation, 135 U. _____________________________________________________ Penn. L. Rev. 595, 598-99 (1987) (footnotes omitted), and -24- -24- For the reasons that follow, we conclude that no exception to the law of the case doctrine applies here and, therefore, that Cohen II's rulings of law control the disposition ________ of this appeal. Brown contends that stare decisis does not bind this _____ _______ panel "to the previous preliminary ruling of this Court because it lacks the element of finality," Reply Br. at 24, and that the law of the case doctrine does not prevent a court from "changing its mind," id. at n.47. ___ We acknowledge that we have repeatedly emphasized that conclusions and holdings regarding the merits of issues presented on appeal from a grant of a preliminary injunction are to be understood as statements as to probable outcomes. E.g., ____ A.M. Capen's Co. v. American Trading and Prod. Co., 74 F.3d 317 , ________________ _______________________________ 322 (1st Cir. 1996); Narragansett Indian Tribe v. Guilbert, 934 __________________________ ________ F.2d 4, 6 (1st Cir. 1991). The concern informing this caveat arises when we are asked to rule on the propriety of a district court's grant of a preliminary injunction (or otherwise issue a preliminary ruling) without benefit of full argument and a well- ____________________ "has been said to lie half way between stare decisis and res _____ _______ ___ judicata," 1B Moore at 0.404[1] n.3 (internal quotation ________ marks and citation omitted). As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. 1B Moore at _____ _______ 0.404[1]. Both doctrines reflect concerns that have long been recognized as fundamentally important to the rule of law -- e.g., stability, predictability, and respect for judicial authority -- and both doctrines are applied "with more or less rigidity depending on which interest is served." Id. at ___ II-2. -25- -25- developed record. In this case, however, the record before the prior panel was "sufficiently developed and the facts necessary to shape the proper legal matrix [we]re sufficiently clear," Cohen II, 991 F.2d at 904 , and nothing in the record subsequently ________ developed at trial constitutes substantially different evidence that might undermine the validity of the prior panel's rulings of law. In considering plaintiffs' motion for a preliminary injunction in Cohen I, the district court (i) "paid meticulous _______ attention to the parties' prospects for success over the long haul;" (ii) "plainly visualized both the factual intricacies and legal complexities that characterize Title IX litigation;" (iii) "held a lengthy adversary hearing and reviewed voluminous written submissions;" and (iv) "correctly focused on the three-part accommodation test." Cohen II, 991 F.2d at 903 . Further, as the ________ district court noted in its opinion after the trial on the merits, "[n]othing in the record before me, now fully developed, undermines the considered legal framework established by the First Circuit at the preliminary injunction stage." Cohen III, __________ 879 F. Supp. at 194 . Brown offers remarkably little in the way of analysis or authority to support its blithe contention that we are free to disregard Cohen II in disposing of this appeal. Indeed, Brown ________ argues as if the prior panel had not decided the precise statutory interpretation questions presented (which it clearly did) and as if the district court's liability analysis were -26- -26- contrary to the law enunciated in Cohen II (which it clearly is ________ not). Finding Brown's bare assertions to be unpersuasive, we decline the invitation to this court to "change its mind." The precedent established by the prior panel is not clearly erroneous; it is the law of this case and the law of this circuit. IV. IV. Brown contends that the district court misconstrued and misapplied the three-part test. Specifically, Brown argues that the district court's interpretation and application of the test is irreconcilable with the statute, the regulation, and the agency's interpretation of the law, and effectively renders Title IX an "affirmative action statute" that mandates preferential treatment for women by imposing quotas in excess of women's relative interests and abilities in athletics. Brown asserts, in the alternative, that if the district court properly construed the test, then the test itself violates Title IX and the United States Constitution. We emphasize two points at the outset. First, notwithstanding Brown's persistent invocation of the inflammatory terms "affirmative action," "preference," and "quota," this is not an affirmative action case. Second, Brown's efforts to evade the controlling authority of Cohen II by recasting its core legal ________ arguments as challenges to the "district court's interpretation" of the law are unavailing; the primary arguments raised here have -27- -27- already been litigated and decided adversely to Brown in the prior appeal. A. A. Brown's talismanic incantation of "affirmative action" has no legal application to this case and is not helpful to Brown's cause. While "affirmative action" may have different connotations as a matter of politics, as a matter of law, its meaning is more circumscribed. True affirmative action cases have historically involved a voluntary10 undertaking to remedy discrimination (as in a program implemented by a governmental body, or by a private employer or institution), by means of specific group-based preferences or numerical goals, and a specific timetable for achieving those goals. See Adarand, --- ___ _______ U.S. ---, 115 S. Ct. 2097 (1995) (remanding for review under strict scrutiny a challenge to a federal statute establishing a government-wide goal for awarding to minority businesses not less than 5% of the total value of all prime contracts and subcontracts for each fiscal year); Metro Broadcasting v. FCC, __________________ ___ ____________________ 10. Cases and commentators sometimes treat cases involving involuntarily implemented plans -- e.g., plans adopted pursuant to a consent decree or a contempt order -- as affirmative action cases. See, e.g., United States v. ___ ____ ______________ Paradise, 480 U.S. 149 (1987) (upholding a "one-black-for- ________ one-white" promotion requirement ordered by a district court as an interim measure in response to proven discrimination by a state employer); Sheet Metal Workers v. EEOC, 478 U.S. 421 ___________________ ____ (1986) (upholding a federal district court's imposition on the union a goal for racial minority membership as a remedy for the union's contempt of the court's earlier orders to cease racially discriminatory admissions practices). -28- -28- 497 U.S. 547 (1990) (upholding a federal program requiring race- based preferences); City of Richmond v. J.A. Croson Co., 488 U.S. ________________ _______________ 469 (1989) (striking down a municipal set-aside program requiring that 30% of the city's construction dollars be paid to racial minority subcontractors on an annual basis); Johnson v. _______ Transportation Agency, 480 U.S. 616 (1986) (upholding a temporary _____________________ program authorizing a county agency to consider sex and race as factors in making promotions in order to achieve a statistically measurable improvement in the representation of women and minorities in major job classifications in which they had been historically underrepresented); Wygant v. Jackson Bd. of Educ., ______ _____________________ 476 U.S. 267 (1986) (striking down a collective-bargaining faculty lay-off provision requiring preferential treatment for certain racial minorities); Fullilove v. Klutznick, 448 U.S. 448 _________ _________ (1980) (upholding a federal program requiring state and local recipients of federal public works grants to set aside 10% of funds for procuring goods and services from minority business enterprises); United Steelworkers v. Weber, 443 U.S. 193 (1979) ____________________ _____ (upholding a collective bargaining agreement that set aside for blacks half the places in a new training program until the percentage of blacks among skilled workers at the plant was commensurate with the percentage of blacks in the local labor force); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 _______________________________ _____ (1978) (striking down a state medical school's admissions policy that set aside 16 of its places for racial minorities). -29- -29- Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI. No aspect of the Title IX regime at issue in this case -- inclusive of the statute, the relevant regulation, and the pertinent agency documents -- mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals. Like other anti-discrimination statutory schemes, the Title IX regime permits affirmative action.11 In addition, Title _______ IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the existence of discrimination. Consistent with the school desegregation cases, the question of substantial proportionality under the Policy Interpretation's three-part test ____________________ 11. As previously noted, Title IX itself specifies only that the statute shall not be interpreted to require gender-based _______ preferential or disparate treatment. 20 U.S.C. 1681(b). However, although Congress could easily have done so, it did not ban affirmative action or gender-conscious remedies under Title IX. See also Weber, 443 U.S. at 201-02 (construing the ___ ____ _____ prohibition against race discrimination contained in 703(a) and (d) of Title VII, and concluding that "an interpretation of the sections that forbade all race- conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected") (internal quotation marks and citations omitted); id. at 205-06 (construing 703(j) of Title VII, ___ upon which 1681(b) of Title IX was based, and concluding that "[t]he natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action"). In addition, remedial action and voluntary affirmative action to overcome the effects of gender discrimination are permitted under the Title IX regulations, 34 C.F.R. 106.3, and by the Policy Interpretation, 44 Fed. Reg. at 71,416. -30- -30- is merely the starting point for analysis, rather than the conclusion; a rebuttable presumption, rather than an inflexible requirement. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of ___ ____ _____ _____________________________ Educ., 402 U.S. 1, 25 (1971). In short, the substantial _____ proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. Also consistent with the school desegregation cases, the substantial proportionality test of prong one is applied under the Title IX framework, not mechanically, but case-by-case, in a fact-specific manner. As with other anti-discrimination regimes, Title IX neither mandates a finding of discrimination based solely upon a gender-based statistical disparity, see Cohen ___ _____ II, 991 F.2d at 895 , nor prohibits gender-conscious remedial __ measures. See Missouri v. Jenkins, --- U.S. ---, ---, 115 S. Ct. ___ ________ _______ 2038, 2048 (1995) (acknowledging the constitutional permissibility of court-ordered, race-conscious remedial plans designed to restore victims of discrimination to the positions they would have occupied in the absence of such conduct); Fullilove, 448 U.S. at 483 (recognizing that the authority of a _________ federal court to incorporate racial criteria into a remedial decree also extends to statutory violations and that, where federal anti-discrimination laws have been violated, race- conscious remedies may be appropriate); Weber, 443 U.S. at 197 _____ (holding that Title VII does not prohibit private employers from -31- -31- voluntarily implementing race-conscious measures to eliminate "manifest racial imbalances in traditionally segregated job categories"); McDaniel v. Barresi, 402 U.S. 39, 41 (1971) ________ _______ (recognizing that measures required to remedy race discrimination "will almost invariably require" race-conscious classifications, and that "[a]ny other approach would freeze the status quo that is the very target of all desegregation processes"). Another important distinction between this case and affirmative action cases is that the district court's remedy requiring Brown to accommodate fully and effectively the athletics interests and abilities of its women students does not raise the concerns underlying the Supreme Court's requirement of a particularized factual predicate to justify voluntary affirmative action plans. In reviewing equal protection challenges to such plans, the Court is concerned that government bodies are reaching out to implement race- or gender-conscious remedial measures that are "ageless in their reach into the past, and timeless in their ability to affect the future," Wygant, 476 ______ U.S. at 276, on the basis of facts insufficient to support a prima facie case of a constitutional or statutory violation, Croson, 488 U.S. at 500, to the benefit of unidentified victims ______ of past discrimination, see id. at 469; Wygant, 476 U.S. at 276 . ___ ___ ______ Accordingly, the Court has taken the position that voluntary affirmative action plans cannot be constitutionally justified absent a particularized factual predicate demonstrating the -32- -32- existence of "identified discrimination," see Croson, 488 U.S. at ___ ______ 500-06, because "[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy," Wygant, 476 U.S. at 276 . ______ From a constitutional standpoint, the case before us is altogether different. Here, gender-conscious relief was ordered by an Article III court, constitutionally compelled to have before it litigants with standing to raise the cause of action alleged; for the purpose of providing relief upon a duly adjudicated determination that specific defendants had discriminated against a certified class of women in violation of a federal anti-discrimination statute; based upon findings of fact that were subject to the Federal Rules of Evidence. The factual problem presented in affirmative action cases is, "Does the evidence support a finding of discrimination such that race- or gender-conscious remedial measures are appropriate?" We find these multiple indicia of reliability and specificity to be sufficient to answer that question in the affirmative. From the mere fact that a remedy flowing from a judicial determination of discrimination is gender-conscious, it does not follow that the remedy constitutes "affirmative action." Nor does a "reverse discrimination" claim arise every time an anti-discrimination statute is enforced. While some gender- conscious relief may adversely impact one gender -- a fact that has not been demonstrated in this case -- that alone would not -33- -33- make the relief "affirmative action" or the consequence of that relief "reverse discrimination." To the contrary, race- and gender-conscious remedies are both appropriate and constitutionally permissible under a federal anti-discrimination regime, although such remedial measures are still subject to equal protection review. See Miller v. Johnson, --- U.S. ---, -- ___ ______ _______ -, 115 S. Ct. 2475, 2491 (1995) ("compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws") (citing Shaw v. Reno, 509 U.S. 630, 653-54 (1993)). ____ ____ B. B. Cohen II squarely rejected Brown's interpretation of _________ the three-part test and carefully delineated its own, which is now the law of this circuit as well as the law of this case. On remand, the district court's liability analysis explicitly and faithfully adhered to Cohen II's mandate, and we are bound to do ________ the same at this stage of the litigation, absent one of the exceptional circumstances discussed supra. Because the precise _____ questions presented regarding the proper interpretation of the Title IX framework were considered and decided by a panel of this court in the prior appeal, and because no exception to the law of the case doctrine is presented, we have no occasion to reopen the issue here. Brown's rehashed statutory challenge is foreclosed by the law of the case doctrine and we are therefore bound by the -34- -34- prior panel's interpretation of the statute, the regulation, and the relevant agency pronouncements. In its liability analysis, the district court expressly accepted Cohen II's elucidation of the applicable law, ________ Cohen III, 879 F. Supp. at 194 , and applied the law in accordance _________ with its mandate, id. at 210-13 . Indeed, every circuit court to ___ have reviewed a Title IX claim of discrimination in athletics since Cohen II was decided is in accord with its explication of ________ the Title IX regime as it applies to athletics. See Horner v. ___ ______ Kentucky High Sch. Athletics Ass'n, 43 F.3d 265 (6th Cir. 1994); ___________________________________ Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir. 1994), cert. ______ __________________ _____ denied, --- U.S. ---, 115 S. Ct. 938 (1995); Favia v. Indiana ______ _____ _______ Univ. of Pa., 7 F.3d 332 (3d Cir. 1993); Roberts v. Colorado _____________ _______ ________ State Bd. of Agric., 998 F.2d 824 (10th Cir.), cert. denied, 510 ___________________ _____ ______ U.S. 1004 (1993). Cohen II held that the Policy Interpretation is _________ entitled to substantial deference because it is the enforcing agency's "considered interpretation of the regulation." 991 F.2d at 896-97. Brown argues that the district court erred in concluding that it was obligated to give substantial deference to the Policy Interpretation, on the ground that "the interpretation is not a worthy candidate for deference," Reply Br. at 15, because "the urged interpretation is illogical, conflicts with the Constitution, the Statute, the Regulation, other Agency materials and practices, existing analogous caselaw and, in -35- -35- addition, is bad policy," id. We reject Brown's kitchen-sink ___ characterization of the Policy Interpretation and its challenge to the substantial deference accorded that document by the district court. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. 44 Fed. Reg. at 71,413. It is well settled that, where, as here, Congress has expressly delegated to an agency the power to "elucidate a specific provision of a statute by regulation," the resulting regulations should be accorded "controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron U.S.A. Inc. v. Natural Resources Defense ___________________ _________________________ Council, Inc., 467 U.S. 837, 844 (1984). It is also well ______________ established "'that an agency's construction of its own regulations is entitled to substantial deference.'" Martin v. ______ Occupational Safety and Health Review Comm'n, 499 U.S. 144 , 150 _____________________________________________ (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939 (1986)) (other ____ _____ citation omitted). As the Supreme Court has explained, "[b]ecause applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers." Martin, 499 U.S. at ______ 151 (citation omitted). -36- -36- Applying these principles, Cohen II held that the _________ applicable regulation, 34 C.F.R. 106.41, deserves controlling weight, 991 F.2d at 895 ; that the Policy Interpretation warrants substantial deference, id. at 896-97; and that, "[b]ecause the ___ agency's rendition stands upon a plausible, if not inevitable, reading of Title IX, we are obligated to enforce the regulation according to its tenor," id. at 899 (citations omitted). Accord ___ ______ Horner, 43 F.3d at 274-75 ; Kelley, 35 F.3d at 270 ; Favia v. ______ ______ _____ Indiana Univ. of Pa., 812 F. Supp. 578, 584 (W.D. Pa.), aff'd, 7 ____________________ _____ F.3d 332 (3d Cir. 1993). On remand, the district court properly applied the legal framework elucidated in Cohen II and explicitly ________ followed this court's mandate in according controlling weight to the regulation and substantial deference to the Policy Interpretation. Cohen III, 879 F. Supp. at 197-99 ; accord _________ ______ Kelley, 35 F.3d at 272 (holding that "neither the regulation nor ______ the policy interpretation run afoul of the dictates of Title IX"). We hold that the district court did not err in the degree of deference it accorded the regulation and the relevant agency pronouncements. C. C. As previously noted, the district court held that, for purposes of the three-part test, the intercollegiate athletics participation opportunities offered by an institution are properly measured by counting the number of actual participants on intercollegiate teams. Cohen III, 879 F. Supp. _________ -37- -37- at 202. The Policy Interpretation was designed specifically for intercollegiate athletics.12 44 Fed. Reg. at 71,413. Because the athletics regulation distinguishes between club sports and intercollegiate sports, under the Policy Interpretation, "club teams will not be considered to be intercollegiate teams except in those instances where they regularly participate in varsity competition." Id. at n.1. Accordingly, the district court ___ excluded club varsity teams from the definition of "intercollegiate teams" and, therefore, from the calculation of participation opportunities, because the evidence was inadequate to show that the club teams regularly participated in varsity competition. Cohen III, 879 F. Supp. at 200 . _________ The district court's definition of athletics participation opportunities comports with the agency's own definition. See Clarification Memorandum at 2 ("In determining ___ participation opportunities, OCR counts the number of actual athletes participating in the athletic program."). We find no error in the district court's definition and calculation of the intercollegiate athletics participation opportunities afforded to Brown students, and no error in the court's finding of a 13.01% disparity between the percentage of women participating in ____________________ 12. Application of the Policy Interpretation is not limited to intercollegiate athletics, however. The Policy Interpretation states that "its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulation." 44 Fed. Reg. at 71,413. -38- -38- intercollegiate varsity athletics at Brown and the percentage of women in Brown's undergraduate student body. D. D. Brown contends that an athletics program equally accommodates both genders and complies with Title IX if it accommodates the relative interests and abilities of its male and ________ female students. This "relative interests" approach posits that an institution satisfies prong three of the three-part test by meeting the interests and abilities of the underrepresented gender only to the extent that it meets the interests and abilities of the overrepresented gender.13 See Cohen II, 991 ___ ________ F.2d at 899. Brown maintains that the district court's decision imposes upon universities the obligation to engage in preferential treatment for women by requiring quotas in excess of women's relative interests and abilities. With respect to prong three, Brown asserts that the district court's interpretation of the word "fully" "requires universities to favor women's teams and treat them better than men's [teams]. . . . forces them to ____________________ 13. We note that Brown presses its relative interests argument under both prong one and prong three. At trial, Brown argued that, "in order to succeed on prong one, plaintiffs bear the burden of proving that the percentage of women among varsity athletes is not substantially proportionate to the percentage of women among students ________ interested in participating in varsity athletics." Cohen __________ __ _____________ __ _______ _________ _____ III, 879 F. Supp. at 205 . At the preliminary injunction ___ stage, Brown propounded the same relative interests argument under prong three. Id. at n.41. ___ -39- -39- eliminate or cap men's teams. . . . [and] forces universities to impose athletic quotas in excess of relative interests and abilities." Appellant's Br. at 55. The prior panel considered and rejected Brown's approach, observing that "Brown reads the 'full' out of the duty to accommodate 'fully and effectively.'" Cohen II, 991 F.2d at ________ 899. Under Cohen II's controlling interpretation, prong three _________ "demands not merely some accommodation, but full and effective accommodation. If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test." Id. at 898. ___ Brown's interpretation of full and effective accommodation is "simply not the law." Cohen III, 879 F. Supp. _________ at 208. We agree with the prior panel and the district court that Brown's relative interests approach "cannot withstand scrutiny on either legal or policy grounds," Cohen II, 991 F.2d ________ at 900, because it "disadvantages women and undermines the remedial purposes of Title IX by limiting required program expansion for the underrepresented sex to the status quo level of relative interests," Cohen III, 879 F. Supp. at 209 . After Cohen _________ _____ II, it cannot be maintained that the relative interests approach __ is compatible with Title IX's equal accommodation principle as it has been interpreted by this circuit. -40- -40- Brown argues that the district court's interpretation of the three-part test requires numerical proportionality, thus ________ imposing a gender-based quota scheme in contravention of the statute. This argument rests, in part, upon Brown's reading of 20 U.S.C. 1681(b) as a categorical proscription against consideration of gender parity. Section 1681(b) provides: Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any ______ community, State, section or other area . _______________________________________ . . . 20 U.S.C.A. 1681(b) (West 1990) (emphasis added). The prior panel, like Brown, assumed without analysis that 1681(b) applies unequivocally to intercollegiate athletics programs. We do not question Cohen II's application of _________ 1681(b). We think it important to bear in mind, however, the congressional concerns that inform the proper interpretation of this provision. Section 1681(b) was patterned after 703(j) of Title VII, 42 U.S.C. 2000e-2(j), and was specifically designed to prohibit quotas in university admissions and hiring, based upon the percentage of individuals of one gender in a geographical community. See H.R. Rep. No. 554, 92d Cong., 1st ___ Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 2462, 2590-92 _________ __ -41- -41- (Additional Views); 117 Cong. Rec. 39,261-62 (1971) (remarks of Rep. Quie); 117 Cong. Rec. 30,406, 30,409 (remarks of Sen. Bayh); 117 Cong. Rec. 39,251-52 (remarks of Rep. Mink and Rep. Green). Thus, the legislative history strongly suggests that the underscored language defines what is proscribed (in the contexts of admissions and hiring) in terms of a geographical area, beyond ______ the institution, and does not refer to an imbalance within the ___ ___________ ______ ___ university, with respect to the representation of each gender in __________ intercollegiate athletics, as compared to the gender makeup of the student body. In any event, the three-part test is, on its face, entirely consistent with 1681(b) because the test does not require preferential or disparate treatment for either gender. _______ Neither the Policy Interpretation's three-part test, nor the district court's interpretation of it, mandates statistical ________ balancing; "[r]ather, the policy interpretation merely creates a presumption that a school is in compliance with Title IX and the applicable regulation when it achieves such a statistical balance." Kelley, 35 F.3d at 271 . ______ The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. As previously noted, Cohen II expressly held that "a court assessing ________ Title IX compliance may not find a violation solely because there ______ is a disparity between the gender composition of an educational institution's student constituency, on the one hand, and its -42- -42- athletic programs, on the other hand." 991 F.2d at 895 . The panel then carefully delineated the burden of proof, which requires a Title IX plaintiff to show, not only "disparity between the gender composition of the institution's student body and its athletic program, thereby proving that there is an underrepresented gender," id. at 901, but also "that a second ___ element -- unmet interest -- is present," id., meaning that the ___ underrepresented gender has not been fully and effectively accommodated by the institution's present athletic program, id. ___ at 902 (citing 44 Fed. Reg. at 71,418). Only where the plaintiff meets the burden of proof on these elements and the institution ___ fails to show as an affirmative defense a history and continuing practice of program expansion responsive to the interests and abilities of the underrepresented gender will liability be established. Surely this is a far cry from a one-step imposition of a gender-based quota. Brown simply ignores the fact that it is required to accommodate fully the interests and abilities of the underrepresented gender, not because the three-part test mandates preferential treatment for women ab initio, but because Brown has __ ______ been found (under prong one) to have allocated its athletics participation opportunities so as to create a significant gender- based disparity with respect to these opportunities, and has failed (under prong two) to show a history and continuing practice of expansion of opportunities for the underrepresented -43- -43- gender. Brown's interpretation conflates prongs one and three and distorts the three-part test by reducing it to an abstract, mechanical determination of strict numerical proportionality. In short, Brown treats the three-part test for compliance as a one- part test for strict liability. Brown also fails to recognize that Title IX's remedial focus is, quite properly, not on the overrepresented gender, but on the underrepresented gender; in this case, women. Title IX and its implementing regulations protect the class for whose special benefit the statute was enacted. See Cannon, 441 ___ ______ U.S. at 694. It is women and not men who have historically and who continue to be underrepresented in sports, not only at Brown, but at universities nationwide. See Williams v. School Dist. of ___ ________ _______________ Bethlehem, Pa., 998 F.2d 168, 175 (1993) (observing that, _______________ although Title IX and its regulations apply equally to boys and girls, "it would require blinders to ignore that the motivation for promulgation of the regulation on athletics was the historic emphasis on boys' athletic programs to the exclusion of girls' athletic programs in high schools as well as colleges"), cert. _____ denied, 510 U.S. 1043 (1994). ______ The prior panel held that "[t]he fact that the overrepresented gender is less than fully accommodated will not, in and of itself, excuse a shortfall in the provision of opportunities for the underrepresented gender." Cohen II, 991 _________ F.2d at 899. Instead, the law requires that, absent a -44- -44- demonstration of continuing program expansion for the underrepresented gender under prong two of the three-part test, an institution must either provide athletics opportunities in proportion to the gender composition of the student body so as to satisfy prong one, or fully accommodate the interests and abilities of athletes of the underrepresented gender under prong three. Id. In other words, ___ If a school, like Brown, eschews the first two benchmarks of the accommodation test, electing to stray from substantial proportionality and failing to march uninterruptedly in the direction of equal athletic opportunity, it must comply with the third benchmark. To do so, the school must fully and effectively accommodate the underrepresented gender's interests and abilities, even if that requires it to give the underrepresented gender (in this case, women) what amounts to a larger slice of a shrinking athletic-opportunity pie. Id. at 906. ___ We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender- based quota scheme. In our view, it is Brown's relative interests approach to the three-part test, rather than the district court's interpretation, that contravenes the language and purpose of the test and of the statute itself. To adopt the relative interests approach would be, not only to overrule Cohen _____ II, but to rewrite the enforcing agency's interpretation of its __ own regulation so as to incorporate an entirely different standard for Title IX compliance. This relative interests -45- -45- standard would entrench and fix by law the significant gender- based disparity in athletics opportunities found by the district court to exist at Brown, a finding we have held to be not clearly erroneous. According to Brown's relative interests interpretation of the equal accommodation principle, the gender- based disparity in athletics participation opportunities at Brown is due to a lack of interest on the part of its female students, rather than to discrimination, and any attempt to remedy the disparity is, by definition, an unlawful quota. This approach is entirely contrary to "Congress's unmistakably clear mandate that educational institutions not use federal monies to perpetuate gender-based discrimination," id. at 907, and makes it virtually ___ impossible to effectuate Congress's intent to eliminate sex discrimination in intercollegiate athletics. E. E. Brown also claims error in the district court's failure to apply Title VII standards to its analysis of whether Brown's intercollegiate athletics program complies with Title IX. The district court rejected the analogy to Title VII, noting that, while Title VII "seeks to determine whether gender-neutral job openings have been filled without regard to gender[,] Title IX . . . was designed to address the reality that sports teams, unlike the vast majority of jobs, do have official gender __ requirements, and this statute accordingly approaches the concept -46- -46- of discrimination differently from Title VII." Cohen III, 879 F. _________ Supp. at 205. It does not follow from the fact that 1681(b) was patterned after a Title VII provision that Title VII standards should be applied to a Title IX analysis of whether an intercollegiate athletics program equally accommodates both genders, as Brown contends. While this court has approved the importation of Title VII standards into Title IX analysis, we have explicitly limited the crossover to the employment context. See Cohen II, 991 F.2d at 902 (citing Lipsett v. University of ___ ________ _______ _____________ P.R., 864 F.2d 881, 897 (1st Cir. 1988)); but see Brown v. Hot, ____ ___ ___ _____ ____ Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir. 1995) ____________________________ (Title VII sexual harassment standards applied to Title IX sexual harassment case in non-employment context), cert. denied, --- _____ ______ U.S. ---, 116 S. Ct. 1044 (1996). As Cohen II recognized, "[t]he scope and purpose of _________ Title IX, which merely conditions government grants to educational institutions, are substantially different from those of Title VII, which sets basic employment standards." 991 F.2d at 902 (citation omitted). "[W]hereas Title VII is largely peremptory," Title IX is "largely aspirational," and thus, a "loosely laced buskin." Id.; see also North Haven, 456 U.S. at ___ ___ ____ ___________ 521 (directing that Title IX must be accorded "a sweep as broad as its language"). -47- -47- It is imperative to recognize that athletics presents a distinctly different situation from admissions and employment and requires a different analysis in order to determine the existence vel non of discrimination. While the Title IX regime ___ ___ permits institutions to maintain gender-segregated teams, the law _______ does not require that student-athletes attending institutions receiving federal funds must compete on gender-segregated teams; nor does the law require that institutions provide completely gender-integrated athletics programs.14 To the extent that Title IX allows institutions to maintain single-sex teams and gender- ____________________ 14. See 34 C.F.R. 106.41(b) (1995) ("[A] recipient may ___ ___ operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.") (emphasis added). Nor do the regulations require _______ institutions to field gender-integrated teams: However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. Id. ___ Whether or not the institution maintains gender- segregated teams, it must provide "gender-blind equality of opportunity to its student body." Cohen II, 991 F.2d at 896 . ________ While this case presents only the example of members of the underrepresented gender seeking the opportunity to participate on single-sex teams, the same analysis would apply where members of the underrepresented gender sought opportunities to play on co-ed teams. -48- -48- segregated athletics programs, men and women do not compete against each other for places on team rosters. Accordingly, and notwithstanding Brown's protestations to the contrary, the Title VII concept of the "qualified pool" has no place in a Title IX analysis of equal opportunities for male and female athletes because women are not "qualified" to compete for positions on men's teams, and vice-versa. In addition, the concept of "preference" does not have the same meaning, or raise the same equality concerns, as it does in the employment and admissions contexts. Brown's approach fails to recognize that, because gender-segregated teams are the norm in intercollegiate athletics programs, athletics differs from admissions and employment in analytically material ways. In providing for gender-segregated teams, intercollegiate athletics programs necessarily allocate ___________ opportunities separately for male and female students, and, thus, any inquiry into a claim of gender discrimination must compare ____ the athletics participation opportunities provided for men with those provided for women. For this reason, and because recruitment of interested athletes is at the discretion of the institution, there is a risk that the institution will recruit only enough women to fill positions in a program that already underrepresents women, and that the smaller size of the women's program will have the effect of discouraging women's participation. -49- -49- In this unique context, Title IX operates to ensure that the gender-segregated allocation of athletics opportunities does not disadvantage either gender. Rather than create a quota or preference, this unavoidably gender-conscious comparison merely provides for the allocation of athletics resources and participation opportunities between the sexes in a non- discriminatory manner. As the Seventh Circuit observed, "Congress itself recognized that addressing discrimination in athletics presented a unique set of problems not raised in areas such as employment and academics." Kelley, 35 F.3d at 270 ______ (citing Sex Discrimination Regulations, Hearings Before the ________________________________________________________ Subcommittee on Post Secondary Education of the Committee on _________________________________________________________________ Education and Labor, 94th Cong., 1st Sess. at 46, 54, 125, 129, ___________________ 152, 177, 299-300 (1975); 118 Cong. Rec. 5807 (1972) (statement of Sen. Bayh); 117 Cong. Rec. 30,407 (1971) (same)). In contrast to the employment and admissions contexts, in the athletics context, gender is not an irrelevant characteristic. Courts and institutions must have some way of determining whether an institution complies with the mandate of Title IX and its supporting regulations to provide equal athletics opportunities for both genders, despite the fact that the institution maintains single-sex teams, and some way of fashioning a remedy upon a determination that the institution does not equally and effectively accommodate the interests and abilities of both genders. As the Kelley Court pointed out (in ______ -50- -50- the context of analyzing the deference due the relevant athletics regulation and the Policy Interpretation): Undoubtedly the agency responsible for enforcement of the statute could have required schools to sponsor a women's program for every men's program offered and vice versa. . . . It was not unreasonable, however, for the agency to reject this course of action. Requiring parallel teams is a rigid approach that denies schools the flexibility to respond to the differing athletic interests of men and women. It was perfectly acceptable, therefore, for the agency to chart a different course and adopt an enforcement scheme that measures compliance by analyzing how a school has allocated its various athletic resources. Kelley, 35 F.3d at 271 (footnotes omitted). ______ Each prong of the Policy Interpretation's three-part test determines compliance in this manner. Measuring compliance through an evaluation of a school's allocation of its athletic resources allows schools flexibility in meeting the athletic interests of their students and increases the chance that the actual interests of those students will be met. And if compliance with Title IX is to be measured through this sort of analysis, it is only practical that schools be given some clear way to establish that they have satisfied the requirements of the statute. The substantial proportionality contained in Benchmark 1 merely establishes such a safe harbor. Id. (citations omitted). ___ We find no error in the district court's refusal to apply Title VII standards in its inquiry into whether Brown's intercollegiate athletics program complies with Title IX. See ___ -51- -51- Cohen II, 991 F.2d at 901 ("[T]here is no need to search for _________ analogies where, as in the Title IX milieu, the controlling statutes and regulations are clear."). We conclude that the district court's application of the three-part test does not create a gender-based quota and is consistent with Title IX, 34 C.F.R. 106.41, the Policy Interpretation, and the mandate of Cohen II. ________ F. F. Brown has contended throughout this litigation that the significant disparity in athletics opportunities for men and women at Brown is the result of a gender-based differential in the level of interest in sports and that the district court's application of the three-part test requires universities to provide athletics opportunities for women to an extent that exceeds their relative interests and abilities in sports. Thus, at the heart of this litigation is the question whether Title IX permits Brown to deny its female students equal opportunity to participate in sports, based upon its unproven assertion that the district court's finding of a significant disparity in athletics opportunities for male and female students reflects, not discrimination in Brown's intercollegiate athletics program, but a lack of interest on the part of its female students that is unrelated to a lack of opportunities. We view Brown's argument that women are less interested than men in participating in intercollegiate -52- -52- athletics, as well as its conclusion that institutions should be required to accommodate the interests and abilities of its female students only to the extent that it accommodates the interests and abilities of its male students, with great suspicion. To assert that Title IX permits institutions to provide fewer athletics participation opportunities for women than for men, based upon the premise that women are less interested in sports than are men, is (among other things) to ignore the fact that Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women's interests and abilities. Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. The Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports. See 44 Fed. Reg. at ___ 71,419 ("Participation in intercollegiate sports has historically been emphasized for men but not women. Partially as a consequence of this, participation rates of women are far below those of men."). Moreover, the Supreme Court has repeatedly condemned gender-based discrimination based upon "archaic and overbroad generalizations" about women. Schlesinger v. Ballard, 419 U.S. ___________ _______ 498, 508 (1975). See, e.g., Mississippi Univ. for Women v. ___ ____ _____________________________ Hogan, 458 U.S. 718, 725 (1982); Califano v. Webster, 430 U.S. _____ ________ _______ -53- -53- 313, 317 (1977); Frontiero v. Richardson, 411 U.S. 677 , 684-86 _________ __________ (1973). The Court has been especially critical of the use of statistical evidence offered to prove generalized, stereotypical notions about men and women. For example, in holding that Oklahoma's 3.2% beer statute invidiously discriminated against males 18-20 years of age, the Court in Craig v. Boren, 429 U.S. _____ _____ 190, 208-209 (1976), stressed that "the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities." See ___ also id. at 202 ("statistics exhibit a variety of . . . ____ ___ shortcomings that seriously impugn their value to equal protection analysis"); id. at 204 ("proving broad sociological ___ propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause"); Cannon, 441 U.S. at 681 ______ n.2 (observing with respect to the relevance of the University of Chicago's statistical evidence regarding the small number of female applicants to its medical school, in comparison to male applicants, that "the dampening impact of a discriminatory rule may undermine the relevance of figures relating to actual ______ applicants"). Thus, there exists the danger that, rather than providing a true measure of women's interest in sports, statistical evidence purporting to reflect women's interest instead provides only a measure of the very discrimination that -54- -54- is and has been the basis for women's lack of opportunity to participate in sports. Prong three requires some kind of evidence of interest in athletics, and the Title IX framework permits the use of statistical evidence in assessing the level of interest in sports.15 Nevertheless, to allow a numbers-based ____________________ 15. Under the Policy Interpretation, Institutions may determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing provided: a. The processes take into account the nationally increasing levels of women's interests and abilities; b. The methods of determining interest and ability do not disadvantage the members of an underrepresented sex; c. The methods of determining ability take into account team performance records; and d. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex. 44 Fed. Reg. at 71,417. The 1990 version of the Title IX Athletics Investigator's Manual, an internal agency document, instructs investigating officials to consider, inter alia, the _____ ____ following: (i) any institutional surveys or assessments of students' athletics interests and abilities, see Valerie M. ___ Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator's Manual at 22 (1990); (ii) the "expressed interests" of the underrepresented gender, id. at ___ 25; (iii) other programs indicative of interests and abilities, such as club and intramural sports, sports programs at "feeder" schools, community and regional sports -55- -55- lack-of-interest defense to become the instrument of further discrimination against the underrepresented gender would pervert the remedial purpose of Title IX. We conclude that, even if it can be empirically demonstrated that, at a particular time, women have less interest in sports than do men, such evidence, standing alone, cannot justify providing fewer athletics opportunities for women than for men. Furthermore, such evidence is completely irrelevant where, as here, viable and successful women's varsity teams have been demoted or eliminated. We emphasize that, on the facts of this case, Brown's lack-of-interest arguments are of no consequence. As the prior panel recognized, while the question of full and effective accommodation of athletics interests and abilities is potentially a complicated issue where plaintiffs seek to create a new team or to elevate to varsity status a team that has never competed at the varsity level, no such difficulty ____________________ programs, and physical education classes, id. ___ As the district court noted, however, the agency characterizes surveys as a "simple way to identify which additional sports might appropriately be created to achieve compliance. . . . Thus, a survey of interests would follow a ______ determination that an institution does not satisfy prong three; it would not be utilized to make that determination in the first instance." Cohen III, 897 F. Supp. at 210 n.51; _________ see 1990 Investigator's Manual at 27 (explaining that a ___ survey or assessment of interests and abilities is not required by the Title IX regulation or the Policy Interpretation but may be required as part of a remedy when OCR has concluded that an institution's current program does not equally effectively accommodate the interests and abilities of students). (We note that the text of the 1990 Investigator's Manual cited herein at page 25 was apparently at page 27 of the copy of the Manual before the district court.) -56- -56- is presented here, where plaintiffs seek to reinstate what were successful university-funded teams right up until the moment the teams were demoted.16 Cohen II, 991 F.2d at 904 ; see also Cohen ________ ___ ____ _____ I, 809 F. Supp. at 992 ("Brown is cutting off varsity _ opportunities where there is great interest and talent, and where ___ Brown still has an imbalance between men and women varsity athletes in relation to their undergraduate enrollments."). On these facts, Brown's failure to accommodate fully and effectively the interests and abilities of the underrepresented gender is clearly established. See ___ Clarification Memorandum at 8 ("If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability or available competition no longer exists."); id. at 8-9 n.2 ("While [other] indications of interest may be ___ helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indicia[,] an ____________________ 16. The district court found that the women's gymnastics team had won the Ivy League championship in 1989-90 and was a "thriving university-funded varsity team prior to the 1991 demotion;" that the donor-funded women's fencing team had been successful for many years and that its request to be upgraded to varsity status had been supported by the athletics director at the time; that the donor-funded women's ski team had been consistently competitive despite a meager budget; and that the club-status women's water polo team had demonstrated the interest and ability to compete at full varsity status. Cohen III, 879 F. Supp. at 190 . _________ -57- -57- institution is expected to meet the actual interests and abilities of its students and admitted students."). Under these circumstances, the district court's finding that there are interested women able to compete at the university-funded varsity level, Cohen III, 879 F. Supp. at 212 , is clearly correct. _________ Finally, the tremendous growth in women's participation in sports since Title IX was enacted disproves Brown's argument that women are less interested in sports for reasons unrelated to lack of opportunity. See, e.g., Mike Tharp ___ ____ et al., Sports crazy! Ready, set, go. Why we love our games, ________________________________________________________ U.S. News & World Report, July 15, 1996, at 33-34 (attributing to Title IX the explosive growth of women's participation in sports and the debunking of "the traditional myth that women aren't interested in sports"). Brown's relative interests approach is not a reasonable interpretation of the three-part test. This approach contravenes the purpose of the statute and the regulation because it does not permit an institution or a district court to remedy a gender-based disparity in athletics participation opportunities. Instead, this approach freezes that disparity by law, thereby disadvantaging further the underrepresented gender. Had Congress intended to entrench, rather than change, the status quo -- with its historical emphasis on men's participation opportunities to the detriment of women's opportunities -- it need not have gone to all the trouble of enacting Title IX. -58- -58- V. V. In the first appeal, this court rejected Brown's Fifth Amendment equal protection challenge to the statutory scheme. Cohen II, 991 F.2d at 900-901 . Here, Brown argues that ________ its challenge is to the decision of the district court. As Brown puts it, "[t]he [equal protection] violation arises from the court's holding that Title IX requires the imposition of quotas, preferential treatment, and disparate treatment in the absence of a compelling state interest and a determination that the remedial measure is 'narrowly tailored' to serve that interest." Reply Br. at 18 (citing Adarand, --- U.S. at ---, 115 S. Ct. at 2117). _______ A. A. To the extent that Brown challenges the constitutionality of the statutory scheme itself, the challenge rests upon at least two erroneous assumptions: first, that Adarand is controlling authority on point that compels us, not _______ only to consider Brown's constitutional challenge anew, but also to apply strict scrutiny to the analysis; second, that the district court's application of the law in its liability analysis on remand is inconsistent with the interpretation expounded in the prior appeal. We reject both premises.17 Brown's implicit ____________________ 17. We assume, without deciding, that Brown has not waived its equal protection claim and has standing to raise it. Appellees argue that this claim is waived because Brown did not raise it in the district court. Appellee's Br. at 55 (citing Desjardins v. Van Buren Community Hosp., 969 F.2d __________ __________________________ 1280, 1282 (1st Cir. 1992)). Appellees also argue that, to the extent that the equal protection claim is viable, Brown -59- -59- reliance on Adarand as contrary intervening controlling authority _______ that warrants a departure from the law of the case doctrine is misplaced because, while Adarand does make new law, the law it _______ makes is wholly irrelevant to the disposition of this appeal, and, even if Adarand did apply, it does not mandate the level of _______ scrutiny to be applied to gender-conscious government action. In rejecting Brown's equal protection claim, the Cohen II panel stated, "It is clear that Congress has broad _________ powers under the Fifth Amendment to remedy past discrimination." 991 F.2d at 901 . The panel cited as authority Metro _____ Broadcasting, 497 U.S. at 565-66 (for the proposition that ____________ "Congress need not make specific findings of discrimination to grant race-conscious relief"), and Califano v. Webster, 430 U.S. ________ _______ at 317 (noting that Webster upheld a social security wage law _______ that benefitted women "in part because its purpose was 'the permissible one of redressing our society's longstanding disparate treatment of women'"). Cohen II, 991 F.2d at 901 . The ________ panel also noted that, in spite of the scant legislative history regarding Title IX as it applies to athletics, Congress heard a great deal of testimony regarding discrimination against women in higher education and acted to reverse the Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555 , 573-74 ___________________ ____ ____________________ lacks standing to raise it. Appellee's Br. at 56 (citing Powers v. Ohio, 499 U.S. 400 , 111 S. Ct. 1364 , 1370-71 ______ ____ (1991)). Given our disposition of this claim, we do not address these arguments. -60- -60- (1984) (holding that Title IX was "program-specific" and thus applied only to those university programs that actually receive federal funds and not to the rest of the university), with athletics prominently in mind. Cohen II, 991 F.2d at 901 . ________ In Metro Broadcasting, the Court upheld two federally __________________ mandated race-based preference policies under intermediate scrutiny. 497 U.S. at 564-65 (holding that benign race-conscious measures mandated by Congress "are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives"). The Metro Broadcasting Court __________________ applied intermediate scrutiny, notwithstanding that the previous year, in Croson, 488 U.S. 469 , the Court applied strict scrutiny ______ in striking down a municipal minority set-aside program for city construction contracts. The Metro Broadcasting Court ____________________ distinguished Croson, noting that "[i]n fact, much of the ______ language and reasoning in Croson reaffirmed the lesson of ______ Fullilove18 that race-conscious classifications adopted by _________ Congress to address racial and ethnic discrimination are subject ____________________ 18. In Fullilove, a plurality of the Court applied a _________ standard subsequently acknowledged to be intermediate scrutiny, see Metro Broadcasting, 497 U.S. at 564 , in ___ ___________________ upholding against a Fifth Amendment equal protection challenge a benign race-based affirmative action program that was adopted by an agency at the explicit direction of Congress. The Fullilove plurality inquired "whether the _________ objectives of th[e] legislation are within the power of __________ Congress[]" and "whether the limited use of racial and ethnic criteria . . . is a constitutionally permissible means for _____ achieving the congressional objectives." 448 U.S. at 473 . -61- -61- to a different standard than such classifications prescribed by state and local governments." Metro Broadcasting, 497 U.S. at __________________ 565. Adarand overruled Metro Broadcasting to the extent _______ ___________________ that Metro Broadcasting is inconsistent with Adarand's holding ___________________ _______ that "all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny." Adarand, --- U.S. at ---, 115 S. _______ Ct. at 2113. Brown impliedly assumes that Adarand's partial _______ overruling of Metro Broadcasting invalidates the prior panel's __________________ disposition of Brown's equal protection challenge by virtue of its passing citation to Metro Broadcasting. This assumption is __________________ erroneous because the proposition for which Cohen II cited Metro ________ _____ Broadcasting as authority has not been vitiated by Adarand, is of ____________ _______ no consequence to our disposition of the issues raised in this litigation, and is, in any event, unchallenged here.19 B. B. The prior panel rejected Brown's Fifth Amendment equal protection20 and "affirmative action" challenges to the ____________________ 19. Cohen II cited Metro Broadcasting for a general __________ ____________________ principle regarding Congress's broad powers to remedy discrimination, a proposition that was not reached by Adarand. Moreover, Webster, which Cohen II cited along with _______ _______ ________ Metro Broadcasting, was not overruled or in any way rendered __________________ suspect by Adarand. _______ 20. It is well settled that the reach of the equal protection guarantee of the Fifth Amendment Due Process Clause -- the basis for Brown's equal protection claim -- is coextensive with that of the Fourteenth Amendment Equal -62- -62- statutory scheme. Cohen II, 991 F.2d at 901 (finding no _________ constitutional infirmity, assuming arguendo, that the regulation ________ creates a classification somewhat in favor of women). Thus, to the extent that Brown challenges the statutory scheme itself, that challenge is foreclosed under the law of the case doctrine. Nevertheless, the remedy ordered for a violation of a federal anti-discrimination statute is still subject to equal protection review, assuming that it constitutes gender-conscious government action. See Miller, --- U.S. at ---, 115 S. Ct. at 2491. ___ ______ Therefore, we review the constitutionality of the district court's order requiring Brown to comply with Title IX by accommodating fully and effectively the athletics interests and abilities of its women students. Because the challenged classification is gender-based, it must be analyzed under the intermediate scrutiny test. Before proceeding to the analysis, however, we must first address Brown's challenge to the standard of review. Brown concedes that Adarand "does not, in partially _______ overruling Metro Broadcasting, set forth the proper standard of ___________________ review for this case." Appellant's Br. at 29. Nevertheless, Brown asserts that "[w]hile Adarand is a case involving racial _______ classification, its analysis clearly applies to gender classification as well." Id. at 27. Further, inappropriately ___ ____________________ Protection Clause. E.g., United States v. Paradise, 480 U.S. ____ _____________ ________ at 166 n.16; Weinberger v. Wiesenfeld, 420 U.S. 636 , 638 n.2 __________ __________ (1975). -63- -63- relying on Frontiero, 411 U.S. 677 , and Croson, 488 U.S. 469 , _________ ______ Brown concludes that strict scrutiny applies to gender-based classifications.21 Appellant's Br. at 29; Reply Br. at 19-20. These conclusory assertions do not comport with the law in this circuit. First, as explained earlier, Adarand and Croson apply _______ ______ to review of legislative affirmative action schemes. This case presents the issue of the legality of a federal district court's determination, based upon adjudicated findings of fact, that a federal anti-discrimination statute has been violated, and of the ____________________ 21. In Frontiero, a plurality of the Court concluded that _________ gender-based classifications, "like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny." 411 U.S. at 688 . In the 23 years that have since elapsed, this position has never commanded a majority of the Court, and has never been adopted by this court. Whatever may be the merits of adopting strict scrutiny as the standard to be applied to gender-based classifications, it is inappropriate to suggest, as Brown does, that Frontiero _________ compels its application here. Brown's assertion that Adarand obligates this _______ court to apply Croson to its equal protection claim is also ______ incorrect. As noted previously, Croson is an affirmative ______ action case and does not control review of a judicial determination that a federal anti-discrimination statute has been violated. To the extent that Brown assumes that Croson ______ governs the issue of the sufficiency of the factual predicate required to uphold a federally mandated, benign race- or gender-based classification, that assumption is also unfounded. As we have explained, Croson's factual concerns ______ are not raised by a district court's determination -- predicated upon duly adjudicated factual findings bearing multiple indicia of reliability and specificity -- of gender discrimination in violation of a federal statute. We also point out that Adarand did not reach the question of the _______ sufficiency of the factual predicate required to satisfy strict scrutiny review of a congressionally mandated race- based classification. -64- -64- statutory and constitutional propriety of the judicial remedy ordered to provide redress to plaintiffs with standing who have been injured by the violation. Second, Adarand does not even discuss gender _______ discrimination, and its holding is limited to explicitly race- based classifications. --- U.S. at ---, 115 S. Ct. at 2113. It can hardly be assumed that the Court intended to include gender- _______ based classifications within Adarand's precedential scope or to _______ elevate, sub silentio, the level of scrutiny to be applied by a ___ ________ reviewing court to such classifications. Third, even if Adarand did apply, it does not dictate _______ the level of scrutiny to be applied in this case, as Brown concedes. For the last twenty years, the Supreme Court has applied intermediate scrutiny to all cases raising equal protection challenges to gender-based classifications, including the Supreme Court's most recent gender discrimination case, United States v. Virginia, --- U.S. ---, 116 S. Ct. 2264 (1996) _____________ ________ ("Virginia"); see id. at 2288 (Rehnquist, C.J., concurring in the ________ ___ ___ judgment) (collecting cases).22 ____________________ 22. We point out that Virginia adds nothing to the analysis ________ of equal protection challenges to gender-based classifications that has not been part of that analysis since 1979, long before Cohen II was decided. While the Virginia _________ ________ Court made liberal use of the phrase "exceedingly persuasive justification," and sparse use of the formulation "substantially related to an important governmental objective," the Court nevertheless struck down the gender- based admissions policy at issue in that case under intermediate scrutiny, --- U.S. at ---, 116 S. Ct. at 2271, 2275; id. at 2288 (Rehnquist, C.J., concurring in the ___ -65- -65- Fourth, it is important to recognize that controlling authority does not distinguish between invidious and benign discrimination in the context of gender-based classifications, as it has in the context of racial classifications. Neither this court nor the Supreme Court has drawn this distinction in the context of gender discrimination claims or held that a less stringent standard applies in cases involving benign, rather than invidious, gender discrimination. See Hogan, 458 U.S. at 724 & ___ _____ n.9 (reviewing benign gender-conscious admissions policy under intermediate scrutiny and recognizing that the analysis does not change with the objective of the classification); accord Wygant, ______ ______ 476 U.S. at 273. Thus, the analytical result would be same, even if this were an affirmative action case. Under intermediate scrutiny, the burden of demonstrating an exceedingly persuasive justification for a government-imposed, gender-conscious classification is met by showing that the classification serves important governmental objectives, and that the means employed are substantially related ____________________ judgment), the standard applied to gender-based classifications since 1976, when it was first announced in Craig v. Boren, 429 U.S. at 197, and the test applied in both _____ _____ Metro Broadcasting and Webster. __________________ _______ The phrase "exceedingly persuasive justification" has been employed routinely by the Supreme Court in applying intermediate scrutiny to gender discrimination claims and is, in effect a short-hand expression of the well-established test. See Personnel Adm'r v. Feeney, 442 U.S. 256 , 273 ___ ________________ ______ (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); _________ ________ Hogan, 458 U.S. at 724 ; J.E.B. v. Alabama ex rel. T.B., 511 _____ ______ _____________________ U.S. 127, 136-37 (1994). -66- -66- to the achievement of those objectives. E.g., Hogan, 458 U.S. at ____ _____ 724. Applying that test, it is clear that the district court's remedial order passes constitutional muster. We find that the first part of the test is satisfied. The governmental objectives of "avoid[ing] the use of federal resources to support discriminatory practices," and "provid[ing] individual citizens effective protection against those practices," Cannon, 441 U.S. at 704 , are clearly important ______ objectives. We also find that judicial enforcement of federal anti-discrimination statutes is at least an important governmental objective. Applying the second prong of the intermediate scrutiny test, we find that the means employed by the district court in fashioning relief for the statutory violation are clearly substantially related to these important objectives. Intermediate scrutiny does not require that there be no other way to accomplish the objectives, but even if that were the standard, it would be satisfied in the unique context presented by the application of Title IX to athletics. As explained previously, Title IX as it applies to athletics is distinct from other anti-discrimination regimes in that it is impossible to determine compliance or to devise a remedy without counting and comparing opportunities with gender explicitly in mind. Even under the individual rights theory of equal protection, reaffirmed in Adarand, --- U.S. at ---, 115 S. _______ -67- -67- Ct. at 2112 (the equal protection guarantee "protect[s] persons, not groups"), the only way to determine whether the rights of an individual athlete have been violated and what relief is necessary to remedy the violation is to engage in an explicitly gender-conscious comparison. Accordingly, even assuming that the three-part test creates a gender classification that favors women, allowing consideration of gender in determining the remedy for a Title IX violation serves the important objective of "ensur[ing] that in instances where overall athletic opportunities decrease, the actual opportunities available to the underrepresented gender do not." Kelley, 35 F.3d at 272 . In ______ addition, a gender-conscious remedial scheme is constitutionally permissible if it directly protects the interests of the disproportionately burdened gender. See Hogan, 458 U.S. at 728 ___ _____ ("In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened."). Under Brown's interpretation of the three-part test, there can never be a remedy for a violation of Title IX's equal opportunity mandate. In concluding that the district court's interpretation and application of the three-part test creates a quota, Brown errs, in part, because it fails to recognize that (i) the substantial proportionality test of prong one is only the starting point, and not the conclusion, of the analysis; and (ii) -68- -68- prong three is not implicated unless a gender-based disparity with respect to athletics participation opportunities has been shown to exist. Where such a disparity has been established, the inquiry under prong three is whether the athletics interests and abilities of the underrepresented gender are fully and effectively accommodated, such that the institution may be found to comply with Title IX, notwithstanding the disparity.23 Of course, a remedy that requires an institution to cut, add, or elevate the status of athletes or entire teams may impact the genders differently, but this will be so only if there is a gender-based disparity with respect to athletics opportunities to begin with, which is the only circumstance in which prong three comes into play. Here, however, it has not been shown that Brown's men students will be disadvantaged by the full and effective accommodation of the athletics interests and abilities of its women students. VI. VI. Brown assigns error to the district court's exclusion of certain evidence pertaining to the relative athletics interests of men and women. Reviewing the district court's ____________________ 23. Under the three-part test, the institution may also excuse the disparity under prong two, by showing a "history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the [underrepresented gender]," 44 Fed. Reg. at 71,418, in which case the compliance inquiry ends without reaching prong three. It has been determined that Brown cannot avail itself of this defense. See Cohen III, 879 F. ___ __________ Supp. at 211. -69- -69- evidentiary rulings for abuse of discretion, see Sinai v. New ___ _____ ___ England Tel. and Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert. _________________________ _____ denied, --- U.S. ---, 115 S. Ct. 597 (1994), we find none. ______ Brown first contends that the court erred in barring cross-examination of plaintiffs' expert Dr. Sabor on the issue of why girls drop out of sports before reaching college. Because Dr. Sabor's direct testimony did not address this issue, it was within the district court's discretion to limit cross-examination "to the subject matter of the direct examination." Fed. R. Evid. 611(b); see Ferragama v. Chubb Life Ins. Co. of Am., 94 F.3d 26 , ___ _________ __________________________ 28 (1st Cir. 1996). Brown also suggests that the district court's exclusion of statistical and survey data offered in support of its relative interests argument constitutes error. Although the district court excluded as full exhibits two studies, the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, it nevertheless permitted Brown's experts to rely on the data contained in these two reports as a basis for their expert opinions.24 Because Brown's experts ____________________ 24. Brown also contends that the district court erred in excluding the NCAA Annual Report. Appellant's Br. at 56-57. Brown merely asserts, however, that the "study was admissible under Rule 803," id. at 57 , and offers no explanation as to ___ how it was prejudiced by the exclusion. Accordingly, we deem the argument waived. Ryan v. Royal Ins. Co. of Am., 916 F.2d ____ _____________________ 731, 734 (1st Cir. 1990) ("It is settled in this circuit that issues adverted to on appeal in a perfunctory manner, unaccompanied by some developed argumentation, are deemed to have been abandoned.") (citations omitted). -70- -70- relied upon the excluded data in providing their opinions on the issue of a gender-based differential in student interest in athletics, the evidence was before the trier of fact and any error was, therefore, harmless. See McDonough Power Equip., Inc. ___ ____________________________ v. Greenwood, 464 U.S. 548, 553 (1984) (instructing appellate _________ courts to "ignore errors that do not affect the essential fairness of the trial"). VII. VII. It does not follow from our statutory and constitutional analyses that we endorse the district court's remedial order. Although we decline Brown's invitation to find that the district court's remedy was an abuse of discretion, we do find that the district court erred in substituting its own specific relief in place of Brown's statutorily permissible proposal to comply with Title IX by cutting men's teams until substantial proportionality was achieved. In Cohen II we stated that it is "established beyond ________ peradventure that, where no [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2964418. Public record. Not legal advice.