                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-2483

                        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

              Selya, Cyr and Stahl, Circuit Judges.
                                                  

                                             

     Jeffrey  S.  Michaelson,  with whom  Julius  C.  Michaelson,
                                                                
Michaelson &amp; Michaelson, and Beverly E. Ledbetter were on  brief,
                                                 
for appellants.
     Lynette  Labinger, with  whom  Roney &amp;  Labinger, Sandra  L.
                                                                 
Duggan,  Kronfeld,  Newberg &amp;  Duggan,  Arthur  H. Bryant,  Trial
                                                                 
Lawyers  for Public  Justice,  P.C., Raymond  Marcaccio, Blish  &amp;
                                                                 
Cavanagh, Amato A.  DeLuca, and Mandell, DeLuca &amp;  Schwartz, Ltd.
                                                                 
were on brief, for appellees.
     Linda S. Stein, Margaret M.  Clark, Steptoe &amp; Johnson, Ellen
                                                                 
J.  Vargyas, and Deborah L.  Brake on brief  for National Women's
                                  
Law Center, Woman's  Sports Foundation, and  National Association
for Girls and Women in Sport, amici curiae.

                                             

                          April 16, 1993
                                             

          SELYA,  Circuit   Judge.    In  this   watershed  case,
          SELYA,  Circuit   Judge.
                                 

defendants-appellants  Brown  University,  Vartan Gregorian,  and

David Roach  appeal  from  the  district court's  issuance  of  a

preliminary  injunction ordering Brown  to reinstate  its women's

gymnastics  and  volleyball  programs  to   full  intercollegiate

varsity status pending the resolution of a Title IX  claim.1  See
                                                                 

Cohen v.  Brown Univ.,  809 F.  Supp. 978 (D.R.I.  1992).   After
                     

mapping  Title IX's rugged  legal terrain and  cutting a passable

swath through  the factual thicket that  overspreads the parties'

arguments, we affirm.

I.  BROWN ATHLETICS:  AN OVERVIEW

          College  athletics,   particularly  in  the   realm  of

football and basketball,  has traditionally occupied  a prominent

role  in  American  sports  and American  society.    For college

students, athletics offers an  opportunity to exacuate leadership

skills, learn teamwork, build  self-confidence, and perfect self-

discipline.    In addition,  for many  student-athletes, physical

skills  are a  passport to  college admissions  and scholarships,

allowing them  to attend  otherwise inaccessible schools.   These

opportunities, and the lessons learned on the playing fields, are

invaluable in attaining career  and life successes in and  out of

professional sports.

          The  highway of  opportunity runs  in both  directions.

                    

     1The individual defendants are, respectively,  the President
and  Athletic Director of  the University.   Each is  sued in his
official capacity.  For ease in reference, we discuss this appeal
as if Brown was  the sole defendant and appellant.   Nonetheless,
our opinion applies equally to all parties.

                                2

Not only  student-athletes, but  universities, too,  benefit from

the magic  of intercollegiate sports.   Successful teams generate

television   revenues   and  gate   receipts  which   often  fund

significant   percentages  of  a  university's  overall  athletic

program, offering  students the opportunity to  partake of sports

that   are   not  financially   self-sustaining.     Even   those

institutions whose teams do not fill the grandstands of cavernous

stadiums  or attract  national television  exposure benefit  from

increased  student  and  alumni   cohesion  and  the  support  it

engenders.   Thus,  universities  nurture the  legends, great  or

small, inhering  in their  athletic past, polishing  the hardware

that adorns field-house trophy cases and reliving heroic exploits

in the pages of alumni magazines.

          In these terms, Brown will never be confused with Notre

Dame or the  more muscular members of the Big  Ten.  Although its

football  team did  play  in the  1916 Rose  Bowl  and its  men's

basketball  team won the  Ivy League championship  as recently as

1986, Brown's  athletic  program has  only occasionally  achieved

national  prominence  or,  for  that  matter,  enjoyed  sustained

success.2  Moreover,  at Brown, as  at most schools, women  are a

relatively  inconspicuous part  of  the  storied  athletic  past.

Historically,  colleges limited  athletics  to  the male  sphere,

leaving  those few women's  teams that  sprouted to  scrounge for

resources.

                    

     2We note, not without a certain irony, that  the now-demoted
women's   volleyball  and   gymnastics   teams  won   Ivy  League
championships in 1988 and 1990, respectively.

                                3

          The absence  of women's  athletics at Brown  was, until

1970, an ineluctable  consequence of the absence  of women; Brown

sponsored a women's college   Pembroke   but did not itself admit

women.    In 1971,  Brown  subsumed  Pembroke.    Brown  promptly

upgraded Pembroke's  rather primitive athletic  offerings so that

by 1977 there were fourteen women's varsity teams.  In subsequent

years, Brown  added only one distaff team:  winter track.  Hence,

in  the  1991-92 academic  year,  Brown  fielded fifteen  women's

varsity teams   one fewer than the number of men's varsity teams.

II.  THE PLAINTIFF CLASS

          In the  spring of 1991,  Brown announced that  it, like

many other schools, was in a financial bind, and that, as a belt-

tightening  measure,  it planned  to  drop four  sports  from its

intercollegiate varsity  athletic roster:  women's volleyball and

gymnastics, men's  golf and water polo.  The University permitted

the  teams  to continue  playing  as  "intercollegiate clubs,"  a

status  that allowed them  to compete against  varsity teams from

other  colleges,3 but  cut  off financial  subsidies and  support

services  routinely available  to  varsity teams  (e.g., salaried
                                                       

coaches, access  to prime  facilities,  preferred practice  time,

medical trainers, clerical  assistance, office support, admission

preferences,  and the  like).   Brown estimated  that eliminating

                    

     3As a practical matter, many schools with varsity squads are
reluctant  to  compete  against  club teams.    This  case  aptly
illustrates  the point.   As  soon as  Brown demoted  its women's
volleyball  team  from  varsity   to  club  status,  Northeastern
University and  West Point  declined to include  Brown on  future
volleyball schedules.  See Cohen, 809 F. Supp. at 993.
                                

                                4

these  four varsity  teams would save  $77,813 per  annum, broken

down   as  follows:     women's   volleyball,  $37,127;   women's

gymnastics,  $24,901;  men's  water  polo,  $9,250;  men's  golf,

$6,545.

          Before the  cuts, Brown athletics  offered an aggregate

of  328 varsity slots for  female athletes and  566 varsity slots

for  male  athletes.   Thus,  women  had  36.7%  of the  athletic

opportunities and men  63.3%.  Abolishing the four  varsity teams

took substantially more dollars  from the women's athletic budget

than from the  men's budget,  but did not  materially affect  the

athletic   opportunity  ratios;  women   retained  36.6%  of  the

opportunities and men  63.4%.  At that time (and  for a number of

years    prior   thereto),   Brown's   student   body   comprised

approximately 52% men and 48% women.

          Following   Brown's   announcement  of   the  cutbacks,

disappointed  members of  the women's  volleyball and  gymnastics

teams brought suit.  They proceeded on an implied cause of action

under Title IX, 20 U.S.C.     1681-1688 (1988).  See  Franklin v.
                                                              

Gwinnett  County  Pub.  Sch.,  112  S.  Ct.  1028,  1032   (1992)
                            

(recognizing  implied private  right of  action under  Title IX);

Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (same);
                               

see also Cannon, 441 U.S. at 687  n.8 (holding that exhaustion of
               

administrative remedies  is  not a  prerequisite  to a  Title  IX

suit).  The plaintiffs charged that Brown's athletic arrangements

violated  Title  IX's  ban  on  gender-based   discrimination,  a

violation that  was allegedly exacerbated by  Brown's decision to

                                5

devalue the two women's  programs without first making sufficient

reductions  in men's  activities or,  in the  alternative, adding

other women's teams to compensate for the loss.

          On plaintiffs'  motion, the district  court certified a

class of  "all present and future Brown University women students

and  potential  students  who participate,  seek  to participate,

and/or   are  deterred  from   participating  in  intercollegiate

athletics  funded by Brown."  And, after hearing fourteen days of

testimony from twenty witnesses,  the judge granted a preliminary

injunction  requiring Brown  to reinstate  the two  women's teams

pending the  outcome of a full  trial on the merits.   See Cohen,
                                                                

809  F. Supp.  at 1001.   We  stayed execution  of the  order and

expedited Brown's appeal.

III.  TITLE IX AND COLLEGIATE ATHLETICS

          Title  IX  prohibits  gender-based   discrimination  by

educational institutions receiving federal financial support   in

practice,  the  vast  majority  of all  accredited  colleges  and

universities.   The statute  sketches wide policy  lines, leaving

the details  to regulating agencies.   Since this  appeal demands

that  we  invade  terra  incognita,4  we  carefully  recount  the
                                  

                    

     4Although there has been a  spate of sports-related Title IX
suits  during the last two  years, see Andrew  Blum, Athletics in
                                                                 
the  Courts, Nat'l L.J., Apr. 5, 1993,  at 1, few have been fully
           
litigated.    See, e.g.,  Carol Herwig,  Massachusetts Reinstates
                                                                 
Women's  Sports, USA  Today, Oct.  22, 1992,  at 14C  (announcing
               
agreement to reinstate three  women's teams at the  University of
Massachusetts and reporting the school's intention to become "the
first university in the country to come into full compliance with
Title IX").   While  the case we  decide today is  apparently the

                                6

developments  leading to the present version of Title IX and then

examine the pertinent statutory and regulatory language.

                      A.  Scope of Title IX.
                                           

          At its  inception, the broad  proscriptive language  of

Title IX caused considerable consternation in the academic world.

The academy's anxiety chiefly  centered around identifying  which

individual programs,  particularly in  terms of  athletics, might

come  within  the scope  of  the  discrimination provision,  and,

relatedly, how  the government  would determine compliance.   The

gridiron  fueled these  concerns:   for many  schools, the  men's

football budget far exceeded  that of any other sport,  and men's

athletics  as  a whole  received  the lion's  share  of dedicated

resources   a share  that, typically, was vastly disproportionate

to the percentage of men in the student body.

          Part of the  confusion about  the scope  of Title  IX's

coverage  and the acceptable avenues of compliance arose from the

absence of secondary legislative materials.  Congress included no

committee report with  the final bill  and there were  apparently

only   two  mentions  of  intercollegiate  athletics  during  the

congressional debate.  See 118 Cong. Rec. 5,807 (1972) (statement
                          

of Sen. Bayh on  privacy in athletic facilities); 117  Cong. Rec.

30,407 (1971) (statement of Sen. Bayh noting  that proposed Title

                    

first  of  these  to reach  the  courts  of  appeals, others  are
pending.  See, e.g., Roberts v. Colorado State Univ., No. 93-1052
                                                    
(10th Cir. 1993) (not yet argued); Cook v. Colgate Univ., No. 92-
                                                        
9175 (2d Cir. 1993) (argued Feb. 26, 1993).

                                7

IX   will   not    require   gender-blended   football    teams).

Nevertheless,  under congressional  direction to  implement Title

IX,  the  Secretary  of   Health,  Education  and  Welfare  (HEW)

promulgated   regulations   in  1975   which   included  specific

provisions for college athletics.  Four years later, HEW's Office

of Civil  Rights (OCR) added another layer of regulatory exegesis

when,  after   notice  and   comment,  it  published   a  "Policy

Interpretation"  that offered  a more  detailed measure  of equal

athletic opportunity.

          In  1984,  the  Supreme  Court  radically  altered  the

contemporary reading of Title  IX.  The Court held that  Title IX

was "program-specific,"  so that its  tenets applied only  to the

program(s)  which actually received federal  funds and not to the

rest  of the university.   Grove City  College v.  Bell, 465 U.S.
                                                       

555,  574 (1984).   Because  few athletic departments  are direct

recipients of federal funds   most federal money for universities

is channelled through financial  aid offices or invested directly

in  research  grants    Grove City  cabined  Title IX  and placed
                                  

virtually all collegiate athletic programs beyond its reach.5

          In  response  to  Grove  City,  Congress  scrapped  the
                                       

program-specific  approach  and  reinstated  an  institution-wide

application  of Title IX by  passing the Civil Rights Restoration

                    

     5Following the  Court's decision  in Grove City,  the United
                                                    
States Department of Education  (which by then had been  spun off
from HEW, see  infra Part III(C))  dropped or curtailed  seventy-
                    
nine  ongoing Title  IX cases.   See  Statements on  Civil Rights
                                                                 
Restoration  Act, Daily Lab. Rep.  (BNA) No. 53,  at D1 (Mar. 20,
                
1981).

                                8

Act of  1987,  20 U.S.C.     1687 (1988).    The Restoration  Act

required that if  any arm of an  educational institution received

federal  funds, the institution as a whole must comply with Title

IX's provisions.  See id.; see also S. Rep. No.  64, 100th Cong.,
                                   

2d  Sess.  4  (1988),  reprinted   in  1988  U.S.C.C.A.N.  3,   6
                                     

(explaining  that  Congress  wanted  to  prohibit  discrimination

throughout an institution if the institution received any federal

funds).    Although the  Restoration  Act  does not  specifically

mention  sports, the  record of  the floor  debate leaves  little

doubt that the enactment was aimed,  in part, at creating a  more

level  playing field for female  athletes.  See,  e.g., 130 Cong.
                                                      

Rec. S12,642 (daily  ed. Oct.  2, 1984) (statement  of Sen.  Byrd

decrying  past discrimination against female athletes); 130 Cong.

Rec.  S11,253 (daily ed. Sept. 17, 1984) (statement of Sen. Hatch

regarding importance of Title IX to ensuring development of women

athletes);  130  Cong.  Rec.  S2,267  (daily ed.  Mar.  2,  1984)

(statement  of  Sen.  Riegle  noting extensive  evidence  of  sex

discrimination in education and athletics).

          The appellants  do not challenge  the district  court's

finding that, under existing  law, Brown's athletic department is

subject to Title  IX.   Accordingly, we devote  the remainder  of

Part III to deterrating the meaning of Title IX, looking first at

the statute and then at the regulations.

                     B.  Statutory Framework.
                                            

          Title IX, like the Restoration Act, does not explicitly

                                9

treat  college  athletics.6   Rather,  the statute's  heart  is a

broad  prohibition   of   gender-based  discrimination   in   all

programmatic aspects of educational institutions:

               No 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.    1681(a) (1988).   After listing  a number of  exempt

organizations,  section 1681  makes  clear that,  while Title  IX

prohibits  discrimination, it  does not mandate  strict numerical

equality  between  the gender  balance  of  a college's  athletic

program  and the  gender  balance of  its  student body.    Thus,

section 1681(a) 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
          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:
          Provided, That this  subsection shall not  be
                  
          construed to prevent the consideration in any
          hearing  or 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.

                    

     6This lacuna apparently results from a political compromise.
After the Conference Committee  deleted an amendment to  Title IX
that would have  exempted "revenue-producing" athletics, Congress
asked the  Secretary of  HEW to provide  regulations specifically
governing athletics.  See 44 Fed. Reg. 71,413 (1979).
                         

                                10

20 U.S.C.    1681(b) (1988).  Put another  way, 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

athletic programs, on the other hand.

          That  is not to say,  however, that evidence  of such a

disparity  is irrelevant.  Quite the contrary:  under the proviso

contained in section 1681(b), a Title IX plaintiff in an athletic

discrimination  suit  must   accompany  statistical  evidence  of

disparate impact with  some further  evidence of  discrimination,

such as unmet needamongst the members of thedisadvantaged gender.

                    C.  Regulatory Framework.
                                            

          As we mentioned above,  the Secretary of HEW, following

Congress's  instructions,  promulgated  regulations  implementing

Title IX  in the  pre-Grove City  era.  See  40 Fed.  Reg. 24,128
                                           

(1975).    Thereafter,  in  1979,  Congress split  HEW  into  the

Department  of Health and Human Services (HHS) and the Department

of Education  (DED).  See  20 U.S.C.     3401-3510 (1988).   In a
                         

wonderful example  of bureaucratic muddle, the  existing Title IX

regulations were  left within  HHS's arsenal  while, at  the same

time,  DED  replicated  them  as  part  of  its   own  regulatory

armamentarium.   Compare 45 C.F.R.    86 (1992) (HHS regulations)
                        

with 34  C.F.R.    106 (1992) (DED  regulations).   Both sets  of
    

regulations were still in effect when the Restoration Act passed.

They  are  identical,  save  only  for  changes  in  nomenclature

reflecting the reorganization of the federal bureaucracy.

                                11

          In short, like pretenders to the emirate of a  deceased

sheik, both HHS  and DED  lay an hereditary  claim to this  oasis

which arises  from the regulatory desert,  asserting authority to

enforce  Title IX.  Nevertheless,  DED is the  principle locus of

ongoing  enforcement  activity.    See  20  U.S.C.     3441(a)(1)
                                      

(transferring all education functions of HEW to DED); see also 20
                                                              

U.S.C.   3441(a)(3) (transferring  education-related OCR work  to

DED).   Therefore, like the parties, we treat DED, acting through

its OCR, as the  administrative agency charged with administering

Title IX.7

          Recognizing  the agency's role  has important practical

and legal  consequences.   Although DED is  not a  party to  this

appeal, we must accord its interpretation of Title IX appreciable

deference.  See Chevron U.S.A. Inc. v.  Natural Resources Defense
                                                                 

Council,  Inc., 467  U.S.  837, 844  (1984);  see also  Udall  v.
                                                             

Tallman, 380 U.S.  1, 16  (1965) (noting that  the Supreme  Court
       

"gives great deference to the interpretation given the statute by

the officers  or agency charged  with its administration").   The

degree  of deference  is  particularly  high  in Title  IX  cases

because Congress explicitly  delegated to the agency  the task of

prescribing standards for athletic programs under Title IX.   See
                                                                 

Pub. L. No. 93-380,   844, 88 Stat. 612 (1974); see also Chevron,
                                                                

467 U.S.  at  844 (holding  that  where Congress  has  explicitly

                    

     7From  this point forward, we use the acronym "OCR" to refer
to  DED's Office  of Civil  Rights which  took on  the education-
related portfolio of HEW's  Office of Civil Rights in  May, 1980.
See 20 U.S.C.   3441(a)(3).
   

                                12

delegated responsibility  to an  agency, the  regulation deserves

"controlling weight");  Batterton v.  Francis, 432 U.S.  416, 425
                                             

(1977); Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990).
                             

          It  is against  this  backdrop that  we scrutinize  the

regulations and the Policy Interpretation.

          1.    The  Regulations.   DED's  regulations  begin  by
          1.    The  Regulations.
                                

detailing  Title IX's  application  to college  athletics.8   The

regulations also recognize, however, that an athletic program may

consist  of  gender-segregated  teams  as  long  as  one  of  two

conditions is met:  either the  sport in which the team  competes

is  a contact sport or the institution offers comparable teams in

the sport to both genders.  See 34 C.F.R.   106.41(b).
                               

          Finally, whether  teams are  segregated by sex  or not,

the school  must provide gender-blind equality  of opportunity to

its  student  body.     The  regulations  offer  a  non-exclusive

compendium of ten  factors which OCR  will consider in  assessing

compliance with this mandate:

               (1) Whether the  selection of sports and
          levels of competition effectively accommodate
          the  interests  and abilities  of  members of

                    

     8The regulations provide:

          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.

34 C.F.R.   106.41(a) (1992).

                                13

          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  of
          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.

34 C.F.R.    106.41(c) (1992).9   The district  court rested  its

preliminary  injunction  on  the  first of  these  ten  areas  of

inquiry:     Brown's  failure  effectively   to  accommodate  the

interests  and abilities of female  students in the selection and

level of sports.   See Cohen, 809 F.  Supp. at 994.  Hence,  this
                            

area  is the  most critical  in terms  of evaluating  the charges

against  Brown  (although  it  is  also  the  most  difficult  to

measure).

          2.  The Policy Interpretation.  In the three years next
          2.  The Policy Interpretation.
                                       

following the  initial issuance of the  regulations, HEW received

                    

     9The same regulation also stipulates that:

          Unequal aggregate expenditures for members of
          each sex or unequal expenditures for male and
          female  teams  if  a  recipient  operates  or
          sponsors separate teams  will not  constitute
          noncompliance  with  this section,  but [DED]
          may consider the failure to provide necessary
          funds  for  teams  for one  sex  in assessing
          equality of opportunity  for members of  each
          sex.

34 C.F.R.   106.41(c) (1992).

                                14

over one  hundred discrimination  complaints involving  more than

fifty schools.   In order to encourage  self-policing and thereby

winnow complaints, HEW proposed a Policy Interpretation.   See 43
                                                              

Fed.  Reg.  58,070  (1978).    It  then  promulgated  the  Policy

Interpretation in final form,  see 44 Fed. Reg. 71,413  (1979), a
                                  

matter of months before the effective date of the statute through

which Congress, emulating King  Solomon, split HEW.   The parties

are in agreement  that, at  DED's birth, it  clutched the  Policy

Interpretation, and,  as a practical  matter, that appears  to be

the case.10   See, e.g., DED,  Title IX Athletics  Investigator's
                                                                 

Manual  1, 2  (1990)  (Manual); see  also  Complaint Letter  from
                                         

Regional Civil  Rights Director,  DED, to Dr.  Martin Massengale,

Chancellor, Univ. of  Nebraska (July 10,  1989) (noting that  DED

"ha[s]   followed   the   directions  provided   in   the  Policy

Interpretation");  Complaint Letter  from  Regional Civil  Rights

Director, DED, to  Dr. Charles  A. Walker,  Chancellor, Univ.  of

Arkansas (Sept. 1, 1989) (same).  Although we can  find no record

that DED  formally adopted the  Policy Interpretation, we  see no

point to splitting the hair, particularly where the parties  have

not  asked us to  do so.   Because this document  is a considered

interpretation  of  the  regulation,   we  cede  it   substantial

deference.  See Martin v. OSHRC, 111 S. Ct. 1171, 1175-76 (1991);
                               

                    

     10Congress  clearly  assigned  HEW's  regulatory  duties  in
education to the nascent DED.   See 20 U.S.C.   3441.   Moreover,
                                   
in taking up its mantle, DED adopted exactly the regulation which
the  Policy Interpretation  purported to  interpret    sending an
unmistakably clear  signal of the agency's  satisfaction with the
Policy Interpretation.

                                15

Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).
                     

          In line with the Supreme Court's direction that, "if we

are  to give [Title  IX] the scope  that its  origins dictate, we

must accord it a sweep as broad as its language," North Haven Bd.
                                                                 

of Educ. v. Bell, 456 U.S. 512, 521 (1982) (quoting United States
                                                                 

v. Price,  383 U.S. 787, 801 (1966)) (collecting cases) (brackets
        

in original),  the Policy Interpretation limns  three major areas

of  regulatory  compliance:11    "Athletic  Financial  Assistance

(Scholarships)," see 34 C.F.R.   106.37(c); "Equivalence in Other
                    

Athletic   Benefits   and  Opportunities,"   see   34   C.F.R.   
                                                

106.41(c)(2)-(10);  and  "Effective   Accommodation  of   Student

Interests  and Abilities,"  see  34 C.F.R.    106.41(c)(1).   The
                               

court  below, see  Cohen, 809 F.  Supp. at  989, and  a number of
                        

other  district  courts, see,  e.g.,  Roberts  v. Colorado  State
                                                                 

Univ.,     F. Supp.    ,     (D. Colo. 1993) [No. 92-Z-1310, slip
     

op. at  3]; Favia v. Indiana  Univ. of Pa., No.  92-2045, 1992 WL
                                          

436239,  at *7  (W.D.  Pa.  Feb.  4,  1993),  have  adopted  this

formulation and ruled that  a university violates Title IX  if it

ineffectively  accommodates  student   interests  and   abilities

regardless of its performance in other Title IX areas.

          Equal opportunity  to participate  lies at the  core of

Title IX's purpose.  Because the third compliance area delineates

this  heartland, we agree with  the district courts  that have so

ruled and hold that,  with regard to the effective  accommodation

                    

     11The  Manual divides Title IX coverage  into the same three
areas and notes  that "an  investigation may be  limited to  less
than all three of these major areas."  Manual at 7.

                                16

of students' interests and  abilities, an institution can violate

Title  IX  even  if  it  meets  the  "financial  assistance"  and

"athletic equivalence" standards.  In other words, an institution

that offers women a smaller number of athletic opportunities than

the  statute requires may  not rectify  that violation  simply by

lavishing more resources on  those women or achieving equivalence

in other respects.12

          3.   Measuring  Effective Accommodation.   The  parties
          3.   Measuring  Effective Accommodation.
                                                 

agree that the third compliance area  is the field on which  this

appeal  must  be fought.   In  surveying  the dimensions  of this

battleground, that  is, whether an  athletic program  effectively

accommodates   students'  interests  and  abilities,  the  Policy

Interpretation  maps   a  trinitarian   model  under  which   the

university must meet at least one of three benchmarks:

               (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

                    

     12In any  event, both the financial  assistance and athletic
equivalence standards are inapposite for present purposes.  As to
the former,  Brown does not confer athletic  scholarships and the
plaintiffs do not allege  that Brown has discriminated by  gender
in  distributing  other financial  aid.   As  to the  latter, the
district court made only preliminary findings,  see Cohen, 809 F.
                                                         
Supp.  at 994-97,  on  the explicit  understanding that  it would
revisit compliance vel non with the athletic equivalence standard
                          
at trial.  Id. at 997.
              

                                17

          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 first benchmark  furnishes a safe

harbor  for those  institutions  that  have distributed  athletic

opportunities  in numbers  "substantially  proportionate" to  the

gender composition  of their student bodies.   Thus, a university

which does  not wish to  engage in extensive  compliance analysis

may stay  on the  sunny side of  Title IX  simply by  maintaining

gender parity between its student body and its athletic lineup.

          The second  and third  parts of the  accommodation test

recognize  that  there  are   circumstances  under  which,  as  a

practical matter,  something short  of this proportionality  is a

satisfactory proxy for gender balance.  For example, so long as a

university is continually expanding athletic opportunities in  an

ongoing effort to meet the  needs of the underrepresented gender,

and persists in this  approach as interest and ability  levels in

its student body and secondary feeder schools rise, benchmark two

is  satisfied and Title IX  does not require  that the university

leap  to complete  gender parity  in a  single bound.   Or,  if a

school has a student body  in which one sex is demonstrably  less

interested in  athletics,  Title IX  does  not require  that  the

                                18

school  create   teams  for,   or  rain  money   upon,  otherwise

disinterested students; rather, the  third benchmark is satisfied

if the underrepresented sex's discernible interests are fully and

effectively accommodated.13

          It seems unlikely, even  in this day and age,  that the

athletic  establishments  of   many  coeducational   universities

reflect   the   gender   balance  of   their   student  bodies.14

Similarly, the recent boom in Title IX suits suggests that, in an

era of  fiscal austerity,  few universities  are prone  to expand

athletic opportunities.  It is not surprising, then, that schools

more often than not attempt  to manage the rigors of Title  IX by

satisfying the  interests and abilities  of the  underrepresented

gender,   that  is,  by  meeting   the  third  benchmark  of  the

accommodation  test.  Yet,  this benchmark sets  a high standard:

it demands  not merely some accommodation, but full and effective

                    

     13OCR also lists a series of illustrative justifications for
the  disparate treatment  of  men's and  women's athletic  teams,
including (1) sports  that require more resources  because of the
nature of the game (e.g.,  contact sports generally require  more
                        
equipment),  (2)  special circumstances,  such  as  an influx  of
first-year players, that may require an extraordinary infusion of
resources,  (3) special operational expenses (e.g., crowd control
                                                  
at  a  basketball tournament),  as  long  as special  operational
expense needs  are  met  for  both genders  and  (4)  affirmative
measures to remedy past limitations on athletic opportunities for
one gender.  44 Fed. Reg. at 71,415-16.

     14Success  in this  regard is,  however, attainable.   After
Washington State University was ordered to increase participation
opportunities for women to a level equivalent with the percentage
of female  undergraduates, see  Blair v. Washington  State Univ.,
                                                                
740  P.2d   1379   (Wash.  1987),   the  University   experienced
considerable success  in meeting  court-ordered goals.   See Mary
                                                            
Jordan, Only  One School  Meets Gender Equity  Goal, Wash.  Post,
                                                   
June 21, 1992, at D1.

                                19

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.

          Although the  full-and-effective-accommodation standard

is  high,  it  is   not  absolute.    Even  when   male  athletic

opportunities  outnumber female  athletic opportunities,  and the

university  has   not  met   the  first   benchmark  (substantial

statistical proportionality) or  the second benchmark (continuing

program expansion) of the accommodation test, the mere fact  that

there are some  female students  interested in a  sport does  not

ipso facto require the school to provide a varsity team in  order
          

to  comply with the third benchmark.  Rather, the institution can

satisfy   the   third   benchmark   by   ensuring   participatory

opportunities  at  the intercollegiate  level  when,  and to  the

extent that, there is "sufficient interest  and ability among the

members  of the  excluded  sex to  sustain  a viable  team and  a

reasonable  expectation of  intercollegiate competition  for that

team .  . . ."   44 Fed. Reg. at  71,418.  Staying on  top of the

problem is not sport for the short-winded:   the institution must

remain   vigilant,   "upgrading  the   competitive  opportunities

available to  the historically disadvantaged sex  as warranted by

developing abilities among the athletes of that  sex," id., until
                                                          

the opportunities for, and  levels of, competition are equivalent

                                20

by gender.15

          Brown   argues   that   DED's  Policy   Interpretation,

construed  as we have  just outlined, goes so  far afield that it

countervails the  enabling legislation.  Brown  suggests that, to

the extent students' interests in athletics are  disproportionate

by  gender, colleges  should be  allowed to meet  those interests

incompletely  as  long  as the  school's  response  is in  direct

proportion to the  comparative levels of interest.   Put bluntly,

Brown reads the "full" out of the duty to accommodate  "fully and

effectively."      It   argues   instead  that   an   institution

satisfactorily  accommodates  female  athletes  if  it  allocates

athletic  opportunities to women in accordance  with the ratio of
                                                                 

interested and able  women to interested and able men, regardless
                                                     

of the number of unserved women or the  percentage of the student

body that they comprise.

          Because  this is  mountainous terrain,  an example  may

serve to clarify the distinction between Brown's proposal and our

understanding of the law.   Suppose a university (Oooh U.)  has a

student body  consisting of 1,000 men  and 1,000 women, a  one to

one ratio.   If 500  men and  250 women are  able and  interested

                    

     15If  in  the  course  of  adding  and  upgrading  teams,  a
university attains gender parity between its athletic program and
its  student   body,  it  meets   the  first  benchmark   of  the
accommodation test.  But, Title IX does not require that a school
pour ever-increasing sums into its athletic establishment.  If  a
university  prefers to  take  another route,  it  can also  bring
itself  into   compliance  with   the  first  benchmark   of  the
accommodation test  by subtraction  and downgrading, that  is, by
reducing  opportunities  for  the  overrepresented  gender  while
keeping opportunities stable for the underrepresented gender  (or
reducing them to a much lesser extent).

                                21

athletes,  the ratio of interested men to interested women is two

to one.   Brown takes  the position that  both the actual  gender

composition of  the  student  body  and whether  there  is  unmet

interest among  the  underrepresented gender  are irrelevant;  in

order to satisfy the  third benchmark, Oooh U. must  only provide

athletic  opportunities in  line with  the two to  one interested

athlete  ratio, say,  100 slots for  men and 50  slots for women.

Under this view, the interest  of 200 women would be unmet    but

there would be no Title IX violation.

          We  think  that  Brown's  perception of  the  Title  IX

universe  is myopic.  The 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.  Rather, the  law requires that, in  the

absence of continuing program  expansion (benchmark two), schools

either meet benchmark one  by providing athletic opportunities in

proportion to the gender composition of the student body (in Oooh

U.'s case, a roughly equal number  of slots for men and women, as

the  student body is equally divided), or meet benchmark three by

fully    accommodating    interested    athletes     among    the

underrepresented  sex  (providing,  at  Oooh U.,  250  slots  for

women).16

                    

     16Of  course, if Oooh U. takes the benchmark three route, it
will also have to provide  at least the same number of  slots for
men; but, so long as women remain the underrepresented gender and
their  interests  are  fully  accommodated,  the  university  can
provide as many (or as  few) additional slots for men as  it sees
fit.

                                22

          In  the final  analysis, Brown's view  is wrong  on two

scores.   It  is wrong  as  a matter  of  law, for  DED's  Policy

Interpretation,   which  requires   full  accommodation   of  the

underrepresented gender,  draws  its essence  from  the  statute.

Whether  Brown's concept  might  be thought  more attractive,  or

whether  we, if  writing  on a  pristine  page, would  craft  the

regulation  in a manner different  than the agency,  are not very

important considerations.  Because  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.  See
                                                                 

Chevron, 467 U.S.  at 843 n.11  (holding that  a "court need  not
       

conclude  that  the  agency  construction  was  the  only one  it

permissibly could  have  adopted  to  uphold  [it]")  (collecting

cases); Massachusetts v. Secretary of  Agric., 984 F.2d 514,  522
                                             

(1st Cir. 1993) (similar).

          Brown's reading of Title  IX is legally flawed  for yet

another reason.  It  proceeds from the premise that  the agency's

third  benchmark countervails  Title  IX.   But, this  particular

imprecation of  the third benchmark  overlooks the  accommodation

test's  general purpose:  to determine whether a student has been

"excluded from participation in, [or] denied the benefits  of" an

athletic  program "on  the basis  of sex .  . .  ."   20 U.S.C.  

1681(a).   While any single  element of this  tripartite test, in

isolation, might not  achieve the  goal set by  the statute,  the

test  as  a  whole is  reasonably  constructed  to implement  the

statute.   No more  is exigible.    See Chemical  Mfrs. Ass'n  v.
                                                             

                                23

Natural  Resources  Defense  Council,  Inc., 470  U.S.  116,  125
                                           

(1985).

          As it happens, Brown's view is also poor policy for, in

the long run, a rule such as Brown advances would  likely make it

more  difficult for colleges  to ensure  that they  have complied

with Title IX.  Given that the survey of  interests and abilities

would begin under circumstances where men's athletic teams have a

considerable head start, such a rule would almost certainly blunt

the  exhortation  that  schools  should "take  into  account  the

nationally increasing levels of women's  interests and abilities"

and avoid "disadvantag[ing] members  of an underrepresented sex .

. . ."  44 Fed. Reg. at 71,417.

          Brown's    proposal    would    also   aggravate    the

quantification problems  that are inevitably bound  up with Title

IX.   Student plaintiffs, who  carry the burden  of proof on this

issue, as well as  universities monitoring self-compliance, would

be required  to assess the level of interest in both the male and

female  student  populations   and  determine  comparatively  how

completely the university was serving the interests of each  sex.

By contrast, as we read the accommodation test's third benchmark,

it requires  a relatively simple  assessment of whether  there is

unmet need in the  underrepresented gender that rises to  a level

sufficient to warrant a new team or the upgrading of an  existing

team.  We think the simpler reading is far more serviceable.

          Furthermore, by moving away from OCR's third benchmark,

which focuses on the levels of interest and ability extant in the

                                24

student body,  Brown's theory invites thorny questions  as to the

appropriate  survey  population,  whether  from  the  university,

typical  feeder schools, or the regional community.  In that way,

Brown's  proposal would  do  little more  than overcomplicate  an

already complex equation.

          We will  not paint the  lily.  Brown's  approach cannot

withstand  scrutiny  on  either  legal  or policy  grounds.    We

conclude that  DED's Policy Interpretation means  exactly what it

says.  This plain  meaning is a proper, permissible  rendition of

the statute.

IV.  THE CONSTITUTIONAL CHALLENGE

          We  turn  now  to  a series  of  case-specific  issues,

starting with Brown's  constitutional challenge to  the statutory

scheme.

                      A.  Equal Protection.
                                          

          Brown  asseverates  that  if  the  third  part  of  the

accommodation test  is read as OCR wrote it   to require full and

effective accommodation of the underrepresented gender   the test

violates the Fifth Amendment's Equal Protection Clause.  We think

not.

          Brown  assumes that  full  and effective  accommodation

disadvantages  male  athletes.17   While  it might  well  be that

                    

     17In  characterizing  Title IX  as  benefitting only  women,
                                                         
Brown takes a rather isthmian view  of the world at large.  After
all,  colleges   that  have  converted  from  exclusively  female
enrollment to coeducational enrollment face situations inverse to
Brown's.  In such a setting, the men's athletic program  may well
be  underdeveloped,   or  underfunded,  or   both,  while  fiscal
retrenchment  offers no  reprieve.    Under these  circumstances,

                                25

more  men than women at Brown are currently interested in sports,

Brown points to no evidence  in the record that men are  any more

likely to  engage in  athletics than women,  absent socialization

and  disparate  opportunities.   In  the  absence  of  any  proof

supporting  Brown's  claim,  and  in view  of  congressional  and

administrative urging  that women,  given  the opportunity,  will

naturally participate in athletics in numbers equal to men, we do

not find  that  the regulation,  when  read in  the  common-sense

manner  that its  language  suggests, see  supra Part  III(C)(3),
                                                

offends the Fifth Amendment.

          What is more, even if we were to assume, for argument's

sake, that the regulation creates a gender classification slanted

somewhat  in  favor of  women,  we would  find  no constitutional

infirmity.  It is clear that Congress has  broad powers under the

Fifth Amendment  to remedy past discrimination.  See, e.g., Metro
                                                                 

Broadcasting, Inc. v. FCC,  110 S. Ct. 2997, 3009  (1990) (noting
                         

that Congress  need not make specific  findings of discrimination

to grant  race-conscious relief);  Califano v. Webster,  430 U.S.
                                                      

313,  317  (1977)  (upholding   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").   Despite the  little legislative  history regarding

discrimination in  collegiate athletics  that emerged  during the

consideration of Title IX,  Congress did hold "extensive hearings

                    

Title  IX  would protect  the athletic  interests  of men  as the
underrepresented sex.

                                26

on higher education" when Title IX was pending, in the course  of

which "much  testimony was  heard with respect  to discrimination

against  women  in higher  education."   H.R.  Rep. No.  554, 92d

Cong.,  2d Sess.  (1972),  reprinted in  1972 U.S.C.C.A.N.  2462,
                                       

2511.   Athletics  featured even  more prominently  in Congress's

decision to  reverse the Grove  City rule.   See  supra pp.  8-9.
                                                       

Under these circumstances, we find Brown's plaint unbecoming.

                     B.  Affirmative Action.
                                           

          Brown rehashes its equal protection argument and serves

it  up as a nominally  different dish, arguing  that the district

court's preliminary injunction  constitutes "affirmative  action"

and violates the Equal Protection Clause because the court lacked

a  necessary factual predicate to warrant such  a step.18  It is,

however, established  beyond peradventure that, where no contrary

legislative  directive appears,  the federal  judiciary possesses

the power  to grant any appropriate  relief on a cause  of action
                       

appropriately  brought  pursuant to  a  federal  statute.19   See
                                                                 

Franklin, 112 S. Ct.  at 1035 (upholding damage remedy  for Title
        

                    

     18The  "authority"  that  Brown  cites in  support  of  this
proposition, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307
                                              
(1978) (Powell, J. concurring), in fact suggests the propriety of
affirmative  relief  where  there  are  judicial  findings  of  a
statutory violation.  See id.
                             

     19On this point, Brown cannot win even if its basic theories
have merit.  If the  district court did not engage in  the proper
factfinding,  then   its  order  constitutes  an   abuse  of  its
discretion.  If, on the other hand, Title IX does not provide for
equitable  relief, the district court will have erred as a matter
of  law in choosing  a remedy outside the  statutory margins.  In
either event,  given that the  statute itself is  compatible with
the  Equal  Protection  Clause,   Brown  cannot  prevail  on  its
                                                                 
constitutional claim.
                    

                                27

IX  violation  and  noting   that  prospective  relief  would  be

inadequate);  see  also  Fed. R.  Civ.  P.  54(c).   Hence,  this
                       

initiative, too, is bootless.

V.  BURDEN OF PROOF

          In addition  to  its constitutional  challenges,  Brown

questions the district court's allocation of the burden of proof.

It  suggests  that  the  analytic  model of  burden  setting  and

shifting  commonly accepted  in Title  VII  and ADEA  cases, see,
                                                                

e.g.,  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
                                                  

254  (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
                                             

05 (1973); Mesnick v.  General Elec. Co., 950 F.2d 816,  823 (1st
                                        

Cir.  1991), cert. denied,  112 S. Ct.  2965 (1992), is  ripe for
                         

importation  into the precincts patrolled by Title IX.  We reject

the suggestion.

          In our view, there  is no need to search  for analogies

where,  as in the Title  IX milieu, the  controlling statutes and

regulations  are clear.  To  invoke the prophylaxis  of Title IX,

the  statute, 20  U.S.C.    1681(b),  and  the regulations,  read

together, require a Title IX plaintiff to show disparity  between

the gender composition of the  institution's student body and its

athletic   program,    thereby   proving   that   there   is   an

underrepresented gender.   Then, the plaintiff  must show that  a

second element   unmet  interest   is  present.  In other  words,

the plaintiff must prove that the underrepresented gender has not

been "fully and effectively accommodated by the present program."

44 Fed. Reg. at 71,418.   If the plaintiff carries the  devoir of

                                28

persuasion  on these two elements, she has proven her case unless

the university shows,  as an affirmative defense,  "a history and

continuing practice of  program expansion  which is  demonstrably

responsive  to  the developing  interests  and  abilities of  the

members" of the underrepresented gender.  Id.
                                             

          Over and beyond the  express dictates of the applicable

statute  and  regulations,  there  is another  valid  reason  for

eschewing the  Title VII paradigm  in most  Title IX cases.   The

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.

See  Franklin v.  Gwinnett County  Pub. Sch.,  911 F.2d  617, 622
                                            

(11th  Cir. 1990) (declining to apply Title VII analysis to Title

IX litigation), aff'd, 112 S.  Ct. 1028 (1992).  Title IX,  while
                     

it applies only to schools that receive federal funds, influences

almost all aspects of educational management.  In contrast, Title

VII applies to a much wider range of institutions   virtually all

employers      but   targets  only   employment-related  matters.

Moreover,  Title IX  is  largely  aspirational    on  the  whole,

affected institutions choose how to accomplish the statutory goal

  whereas  Title VII is  largely peremptory    covered  employers

must  adhere  to statutorily  prescribed  standards.   Thus,  the

former is a loosely laced buskin, inhospitable to the specialized

choreography  of  presumption  and  production   upon  which  the

Burdine/McDonnell Douglas burden-shifting framework depends.
                         

          We conclude,  therefore, that excepting  perhaps in the

                                29

employment discrimination  context, see Lipsett v.  University of
                                                                 

P.R.,  864  F.2d 881,  897 (1st  Cir.  1988) (applying  Title VII
    

standards in Title IX case, but explicitly limiting the crossover

to the  employment context), the Title  VII burden-of-proof rules

do  not apply  in Title  IX cases.20   Consequently,  a Title  IX

plaintiff makes  out an  athletic discrimination case  by proving

numerical disparity, coupled with unmet interest,  each by a fair

preponderance  of the credible evidence, so long as the defendant

does not  rebut the plaintiff's showing  by adducing preponderant

history-and-practice evidence.

VI.  THE PRELIMINARY INJUNCTION

          We come at  long last  to the cynosure  of the  appeal.

This  is  familiar territory.   A  district  court, faced  with a

motion  for preliminary  injunction, must  assess the  request in

four particular ways, evaluating  (1) the movant's probability of

victory  on the merits; (2) the potential for irreparable harm if

the  injunction  is refused;  (3)  the  balance  of interests  as

between the  parties, i.e., whether the harm to the movant if the
                          

injunction is withheld outweighs the harm to the nonmovant if the

injunction  is  granted;  and  (4)  the  public  interest.    See
                                                                 

Narragansett  Indian Tribe v. Guilbert,  934 F.2d 4,  5 (1st Cir.
                                      

1991); Aoude v.  Mobil Oil  Corp., 862  F.2d 890,  892 (1st  Cir.
                                 

1988); Hypertherm, Inc. v. Precision Prods., Inc.,  832 F.2d 697,
                                                 

                    

     20But  cf.  Cook v.  Colgate Univ.,  802  F. Supp.  737, 743
                                       
(N.D.N.Y. 1992) (applying Title  VII process to Title IX  case at
urging  of parties).  Cook  is presently on  appeal to the Second
                          
Circuit.  See supra note 4.
                   

                                30

699  &amp;  n.2  (1st Cir.  1987).   Of  course,  a  district court's

conclusions at the preliminary injunction stage are only attempts

to predict probable outcomes.   Thus, "a party losing  the battle

on  likelihood  of  success may  nonetheless  win  the  war at  a

succeeding trial . . . ."  Guilbert, 934 F.2d at 6.
                                   

          If, in conducting this tamisage, the district court has

made  no  clear  error  of law  or  fact,  we  will overturn  its

calibration  of the  four factors  only for  a manifest  abuse of

discretion.   See Weaver v. Henderson, 984  F.2d 11, 12 (1st Cir.
                                     

1993); Guilbert, 934 F.2d at 5.
               

          Here,  the district  court  found that  the quadrat  of

factors favored plaintiffs' position.  See Cohen, 809 F. Supp. at
                                                

985-1001.   Brown disagrees with  these findings up  and down the

line,  but offers developed argumentation only as to three of the

four components.  Because Brown does not explain its challenge to

the district court's  finding that the  public interest would  be

disserved by leaving the two women's teams on the sidelines until

the suit  is finally resolved, we ignore its pro forma protest in
                                                      

that respect.   Litigants  cannot  preserve an  issue for  appeal

simply  by  raising  a pennant  and  then  moving  on to  another

subject.   See United States v.  Slade, 980 F.2d 27,  30-31 &amp; n.3
                                      

(1st Cir. 1992)  (reiterating that theories not briefed or argued

on appeal  are waived); Ryan v. Royal Ins. Co., 916 F.2d 731, 734
                                              

(1st Cir. 1990) (stating  that "issues adverted to on appeal in a

perfunctory    manner,    unaccompanied    by   some    developed

argumentation, are deemed to have been abandoned").  Accordingly,

                                31

we limit our review to the three factors briefed and argued. 

                    A.  Likelihood of Success.
                                             

          It is old hat, but  still very much in fashion, that  a

movant's   likelihood  of  success   at  trial   is  particularly

influential in the preliminary  injunction calculus.  See Weaver,
                                                                

984 F.2d at 12; Guilbert, 934 F.2d at 6; Public Serv. Co. v. Town
                                                                 

of  West Newbury,  835 F.2d 380,  383 (1st  Cir. 1987).   In this
                

case,  the  district  court  paid  meticulous  attention  to  the

parties' prospects for  success over  the long haul.   The  court

plainly  visualized  both  the  factual   intricacies  and  legal

complexities that  characterize Title IX  litigation.  It  held a

lengthy  adversary   hearing  and  reviewed   voluminous  written

submissions.  And at  journey's end, it correctly focused  on the

three-part accommodation test.

          The court faultlessly dispatched the first two elements

of  the test.   With  respect to  the comparison  between Brown's

athletic  agenda and  student body,  we  adopt the  lower court's

record-rooted  finding that the University did not meet   or even

closely  approach    the "substantial  proportionality" threshold

because  it offered too few varsity opportunities for women.  See
                                                                 

Cohen, 809  F. Supp.  at 991.   Cognizant, perhaps, that  the raw
     

numbers tell an  unambiguous tale, Brown  does not challenge  the

inviolability of this finding.

          As  to the  test's second  part, the court  below found

that, although Brown  could point to  "impressive growth" in  its

women's athletic  program  in  the  1970s,  the  school  had  not

                                32

continued  filling the gap during the next  two decades.  Id.  On
                                                             

this  basis, the  court  concluded that  Brown  had not  met  the

benchmark.  See id.  Brown asserts that  the district court erred
                   

by not crediting  it sufficiently for  its dramatic expansion  of

women's   sports  in  the   1970s,  and   we  are   not  entirely

unsympathetic  to this plea.  In the last analysis, however, this

was  a judgment  call  and the  trial  court's judgment  was  not

unreasonable.   While a university deserves  appreciable applause

for  supercharging a  low-voltage athletic  program in  one burst

rather  than powering  it  up  over  a  longer  period,  such  an

energization,   once  undertaken,  does   not  forever  hold  the

institution harmless.  Here, Brown labored for six years to weave

a broad array of new activities into the fabric of its palestrian

offerings.  The district court apparently believed, however, that

Brown  then rested on its  laurels for at  least twice that long.

The very length of this hiatus  suggests something far short of a

continuing  practice  of program  expansion.    And, moreover,  a
          

university must design expansion in whatever form and at whatever

pace to respond  to the  flux and reflux  of unserved  interests.

The court  below found that Brown  failed in this task.   See id.
                                                                 

The  issue  of  responsiveness  is  fact-intensive  and  in  most

instances, as  here, its  resolution will  be within the  trier's

province.  We find  no error, therefore, in the  district court's

resolution of the second aspect of the accommodation test.

          The  third  benchmark   presents  a  more   problematic

scenario.   The district  court incorrectly held  that Brown bore

                                33

the  burden  of  showing  that  it  had  fully  and   effectively

accommodated the  interests and abilities of  its women athletes.

See  id. at 997.   Section 1681(b) requires  that the plaintiffs,
        

rather than the  University, prove  a shortfall in  the full  and

effective accommodation of interested female athletes by showing,

initially,  both numerical  disparity  and unmet  interest.   See
                                                                 

supra Part  V.   Nonetheless, we  do not think  that the  court's
     

bevue is  fatal.  Even  when a  trial court has  misconstrued the

law, an appellate tribunal  may avoid remanding if the  record is

sufficiently  developed  and the  facts  necessary  to shape  the

proper legal matrix  are sufficiently clear.   See, e.g., Societe
                                                                 

Des Produits Nestle, S.A.  v. Casa Helvetia, Inc., 982  F.2d 633,
                                                 

642 (1st  Cir. 1992) (coupling district  court's factual findings

with correct rule of law);  United States v. Mora, 821 F.2d  860,
                                                 

869 (1st Cir. 1987)  (same); see also Cameron v.  Tomes,     F.2d
                                                       

   ,     (1st Cir. 1993) [No.  92-1343, slip op. at 14-15] (using

findings of fact made  in the framework of an  unacceptable legal

analysis  to  affirm  injunctive  relief  on  a  different  legal

theory).

          We find this to be a particularly auspicious setting in

which to employ such a device.   Although the full and  effective

accommodation of athletic interests is likely to be a complicated

issue where allegedly underrepresented  plaintiffs sue to force a

university  to create a neoteric team or  upgrade the status of a

club team,  see,  e.g., Cook,  802  F.  Supp. at  737,  there  is
                            

unlikely  to be any comparably turbid question as to interest and

                                34

ability  where,  as  here,   plaintiffs  are  seeking  merely  to

forestall the interment of healthy varsity teams.

          In  this  instance,  the  district  court's  subsidiary

findings  of  fact render  it  beyond cavil  that  the plaintiffs

carried their burden  of proof.   The court  found, for  example,

that there was "great interest and talent" amongst Brown's female

undergraduates  which,  following  the cuts,  would  go unserved.

Cohen, 809 F. Supp. at 992.  Of particular moment, the court also
     

found  the interest and talent on campus ample to support women's

varsity volleyball and gymnastics teams, see id.   a finding that
                                                

is hardly surprising in  view of the teams' robust  health before

the  budget-cutters arrived on the scene.  The court proceeded to

note that, while  club teams can be equivalent to intercollegiate

teams when they regularly participate in varsity competition, see
                                                                 

44 Fed. Reg. at 71,413 n.1, the teams that Brown downgraded would

not regularly be competing against varsity teams and would suffer

a  diminution  of status  in a  wide  range of  other significant

respects.  See Cohen, 809 F. Supp. at 992-93.
                    

          The potency  of this evidence is  an effective antidote

to the district  court's partial misapplication of  the burden of

proof.   Because the record  contains nothing that  would allow a

trier to find that Brown's athletic agenda reflects the makeup of

its  student  body  or that  the  plaintiff  class  is so  poorly

populated as  to warrant  a reduction  in  women's sports,21  the

                    

     21It  bears mentioning  in  this regard  that Judge  Pettine
heard, and  apparently credited, evidence  indicating that  there
were  other  women's  club teams  sufficiently  accomplished  and

                                35

court's  error was harmless.   In a nutshell,  the plaintiffs met

their challenge on parts one and three of the accommodation test.

This  conclusion,  in  partnership  with   the  district  court's

supportable finding that Brown did not satisfactorily demonstrate

a continuing  expansion of  its women's athletic  lineup, strikes

the gold.  The court's prediction of plaintiffs' probable success

was, therefore, adequately grounded.

                     B.  Irreparable Injury.
                                           

          The  next area  of inquiry  is irreparable  harm.   The

district court  heard from  a variety of  athletic administration

experts.  The court concluded that, absent judicial intervention,

the plaintiffs would suffer irremediable injury in at least three

respects:    competitive   posture,  recruitment,  and   loss  of

coaching.   As  club teams,  the district  court thought  women's

volleyball   and  gymnastics   would  increasingly   become  less

competitive, have  fewer players,  be unable to  schedule varsity

teams from other schools,  become unattractive to potential stars

making college  choices, and suffer  stagnation in the  growth of

individual talent due to  the absence of coaching.22   See Cohen,
                                                                

809 F. Supp.  at 992-93.   Certainly, these harms  exist to  some

degree.  In highly nuanced cases involving a melange of competing

                    

populated to flourish as varsity squads.  Cohen, 809  F. Supp. at
                                               
992.

     22Brown does not retain  coaches for its club teams  and few
of the teams  have the independent financial  wherewithal to hire
coaches.  Here, the district court specifically found that if the
gymnastics team  was downgraded to  club status, it  would likely
lose  its paid coach when  her contract expired  in June of 1993.
Cohen, 809 F. Supp. at 992.
     

                                36

considerations, the aggregate  injury, and whether  or not it  is

irreparable, come primarily within the trial court's ken.  See K-
                                                                 

Mart Corp. v. Oriental Plaza,  Inc., 875 F.2d 907, 915 (1st  Cir.
                                   

1989)   (acknowledging   that  "[d]istrict   courts   have  broad

discretion  to  evaluate  the  irreparability  of  alleged harm")

(citation omitted).  So it is  here.  Although the types of harms

the court  catalogued might  not all  rise to the  same level  of

seriousness, the overall record supports, even though it does not

compel,  the court's  assessment  of  their cumulative  severity.

Given,  especially,  the  lack  of any  other  concinnous  remedy

pendente  lite, we  will  not second-guess  the district  court's
              

finding of irreparable injury.

                    C.  The Balance of Harms.
                                            

          Finally, the  district court  found that the  competing

equities weighed  in favor  of granting  the  injunction.   After

hearing testimony  from Brown's Financial Vice-President  and its

Associate Athletic Director,  the district  court concluded  that

the cost  of the interim  injunction would be  relatively slight;

and that, in view of discretionary funds already contained in the

Athletic Department budget and a presidential "contingency fund,"

Brown possessed the wherewithal to defray the costs without undue

hardship.  See Cohen, 809 F. Supp. at 1000-01.   By contrast, the
                    

court noted  the volleyball  and gymnastics  programs' continuing

deterioration in the aftermath  of the demotion.  See id. at 992-
                                                         

93.  On balance,  the court determined that the  financial burden

on  Brown was tolerable, and,  in any event,  was overbalanced by

                                37

the potential harm to  the plaintiff class  if the court took  no

action.

          Brown  contests the  results of  this balancing  on the

premise that the district  court wrongly discounted the testimony

of  one  of its  witnesses and  did  not adequately  consider the

possibility  that false  hopes might  be raised by  a preliminary

injunction.  It  is, however,  axiomatic that  a district  court,

sitting  without a jury, may selectively discount testimony as it

weighs  conflicting viewpoints  and adjudicates  the facts.   See
                                                                 

Bose Corp. v.  Consumers Union of U.S.,  Inc., 466 U.S.  485, 500
                                             

(1984);  Anthony v. Sundlun, 952  F.2d 603, 606  (1st Cir. 1991).
                           

This is a trial court's prerogative and, indeed, its duty.

          It   is  similarly   fundamental  that   a  preliminary

injunction, by its very nature,  is sometimes ephemeral.   Hence,

the  risk  that  some  observers  might  read  into  a  temporary

restrainer more than it  eventually proves to mean is  endemic to

the equitable device and cannot tip the scales against its use in

any particular  circumstance.  It  defies elemental logic  to say

that parties  who the court has determined  will probably succeed

at trial should  be denied the  interim relief to which  they are

entitled because  their ultimate victory is  less than absolutely

certain.

          In  fine,  the district  court  did  not overspill  its

discretion either  in taking Brown's  self-interested description

of  its financial plight with a grain  of salt or in limiting the

role that  raising  false  hopes  might  play  in  the  equitable

                                38

calculus.

                         D.  Summing Up.
                                       

          We summarize succinctly, beginning with the probability

of  plaintiffs' success.  In an era where the practices of higher

education must  adjust to stunted revenues,  careening costs, and

changing  demographics, colleges  might well  be obliged  to curb

spending  on programs,  like athletics,  that do  not lie  at the

epicenter  of their  institutional mission.    Title IX  does not

purport to  override financial  necessity.   Yet, the  pruning of

athletic  budgets  cannot  take  place  solely  in  comptrollers'

offices, isolated from the legislative and regulatory imperatives

that Title IX imposes.

          This case aptly illustrates the point.  Brown earnestly

professes that it has done  no more than slash women's and  men's

athletics by  approximately the same degree, and, indeed, the raw

numbers lend  partial credence to that  characterization.23  But,

Brown's claim overlooks the shortcomings that plagued its program

before it took  blade in hand.  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

                    

     23We note, however,  that while the  cuts proposed by  Brown
eliminate a  roughly equal  number of athletic  opportunities for
women as for  men, those  cuts subtract roughly  four times  more
money  from  the budget  for  female pancratiasts  than  from the
budget for their male counterparts.   See supra pp. 4-5.  And, as
                                               
a noted playwright once observed, "where there is no money, there
is no change of any kind."  Moss Hart, Act One (1959).
                                              

                                39

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.

          The record  reveals that the  court below paid  heed to

these realities.  It  properly recognized that even  balanced use

of the budget-paring knife runs afoul of Title IX where, as here,

the  fruits  of  a  university's  athletic  program  remain  ill-

distributed after the trimming takes place.  Because the district

court understood this principle, and because its findings of fact

as to  the  case's  probable  outcome are  based  on  substantial

evidence, the court's determination that plaintiffs are likely to

succeed on the merits is inexpugnable.

          The  district  court  displayed  similar  dexterity  in

touching the other three bases en  route to a grant of injunctive

relief:    irreparability  of  injury,  the  relative  weight  of

potential  harms, and impact on  the public interest.   The court

found that  the harm  to  the plaintiff  class was  irremediable,

absent  prompt  injunctive  relief;  that the  balance  of  harms

favored such relief; and that the overriding public  interest lay

in the firm enforcement of Title IX.   In each of these areas, as

in  the  likelihood-of-success  arena,   the  court  made  serial

findings  that, taken  at  face value,  amply justify  injunctive

relief.  Because these findings derive  adequate support from the

record, the court's  decree must  stand as long  as the  specific

                                40

relief the court ordered  was appropriate.   It is to this  issue

that we now turn.

VII.  REMEDIATION

          After applying the preliminary injunction standard, the

district   court  ordered   relief  pendente   lite,  temporarily
                                                   

reinstating the  women's volleyball and gymnastics  teams.  Brown

argues  that such  specific  relief is  inappropriate because  it

intrudes on Brown's discretion.  The  point has some cogency.  We

are a society that cherishes academic freedom and recognizes that

universities  deserve great  leeway  in their  operations.   See,
                                                                

e.g., Wynne v. Tufts Univ.  Sch. of Med., 976 F.2d 791,  795 (1st
                                        

Cir.  1992), petition for cert. filed (Feb. 3, 1993); Lamphere v.
                                                              

Brown Univ., 875  F.2d 916,  922 (1st Cir.  1989).  In  addition,
           

Title  IX does not  require institutions  to fund  any particular

number or type of athletic opportunities   only that they provide

those opportunities  in a nondiscriminatory fashion  if they wish

to receive federal funds.

          Nonetheless, the district court has broad discretionary

power to take provisional steps restoring the status quo  pending

the conclusion of a trial.  See Ricci v. Okin, 978 F.2d  764, 767
                                             

(1st Cir. 1992); Guilbert, 934 F.2d  at 7 &amp; n.3.  Considering the
                         

district court's  proper estimation  and deft application  of the

preliminary injunction standard, see supra Part VI, we think that
                                          

requiring Brown to maintain the women's volleyball and gymnastics

teams in varsity status for  the time being is a remedial  choice

within  the district  court's discretion.   That  is not  to say,

                                41

however, that the same remedy will be suitable at trial's end  if

the Title IX charges prove out against Brown.  The district court

has noted, we believe appropriately, that if it  ultimately finds

Brown's  athletic program to violate  Title IX, it will initially

require the University to propose  a compliance plan rather  than

mandate the  creation or  deletion of particular  athletic teams.

Cohen, 809 F. Supp. at 1001.  Although the district court has the
     

power to  order  specific relief  if  the institution  wishes  to

continue receiving  federal funds,  see Franklin,  112 S.  Ct. at
                                                

1035, the many routes to Title IX compliance make specific relief

most useful in situations where the institution, after a judicial

determination of noncompliance,  demonstrates an unwillingness or

inability to exercise its discretion in a way that brings it into

compliance with Title IX.

VIII.  CONCLUSION

          We need go  no further.   This  litigation presents  an

array  of complicated and important issues at a crossroads of the

law that few  courts have explored.  The beacon  by which we must

steer is  Congress's unmistakably clear  mandate that educational

institutions  not use  federal monies to  perpetuate gender-based

discrimination.   At the same  time, we must  remain sensitive to

the fact that  suits of  this genre implicate  the discretion  of

universities  to pursue  their  missions  free from  governmental

interference and,  in the bargain, to  deploy increasingly scarce

resources in  the most  advantageous way.   These considerations,

each of which is in service to desirable ends, are necessarily in

                                42

tension in Title IX cases.  Thus, there are unlikely  to be ideal

solutions  to  all the  vexing  problems  that might  potentially

arise.

          This   appeal  exemplifies  many  of  the  difficulties

inherent in Title IX litigation.   We do not presume to  say that

the  district court's interim solution is perfect, but it is fair

and  it  is  lawful.    On  the  record  compiled  to  date,  the

preliminary injunction  requiring Brown to reinstate  its women's

volleyball  and gymnastics  teams for  the time  being came  well

within  the encincture  of  judicial  discretion.   We  will  not

meddle. 

          The preliminary  injunction is affirmed,  the temporary
                                                                 

stay  is dissolved,  and the  cause is  remanded to  the district
                                                                 

court for further proceedings.  Costs to appellees.
                                                  

                                43
