                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 00-3379ND
                                  _____________

Eric Chalenor; Brady Flatten;            *
Chad Lorenson; and Mike Schuster,        *
                                         *
             Appellants,                 * On Appeal from the United
                                         * States District Court
      v.                                 * for the District of
                                         * North Dakota.
                                         *
University of North Dakota,              *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: January 14, 2002
                                 Filed: May 30, 2002 (Corrected 6/11/02)
                                  ___________

Before BOWMAN, RICHARD S. ARNOLD, and HANSEN,1 Circuit Judges.
                          ___________

RICHARD S. ARNOLD, Circuit Judge.


      In this case we consider whether Title IX of the Education Amendments of
1972, 86 Stat. 373-375, as amended, 20 U.S.C. §§ 1681-1688, prohibits a public
university from eliminating a men’s athletic team for the purpose of reducing the
inequality of athletic participation between its male and female students. In 1998, the


      1
      The Hon. David R. Hansen became Chief Judge of the United States Court of
Appeals for the Eighth Circuit on February 1, 2002.
University of North Dakota, citing gender-equity and budgetary issues, canceled its
men’s wrestling program. Only men’s programs were considered for cuts. Plaintiffs,
participants in the wrestling program or recruits to the program, brought suit against
the University in the District Court for the District of North Dakota, alleging that the
elimination of the program violated their rights under Title IX. The University moved
for summary judgment, and the District Court2 granted the motion.

       In this appeal, plaintiffs argue that the elimination of the men’s wrestling
program was a clear example of sex discrimination, which Title IX explicitly forbids.
The University, by contrast, contends that it faced a budget contraction and that,
because a greater percentage of men than women at the University participate in
intercollegiate athletics, and men receive a disproportionately large share of the
athletic budget, continuing to fund the team would have discriminated against
women. Plaintiffs counter that budgetary considerations were not a factor in the
University’s decision because a private donor had offered to fund the wrestling
program, so the team would not have used resources that otherwise would have been
available to female athletes.

      The absence of budgetary issues, plaintiffs argue, distinguishes this case from
decisions in other circuits upholding the elimination of various men’s sports and
leaves the University’s desire to equalize rates of participation and resource allocation
in sports by sex as the sole basis for the decision. The plaintiffs argue that allowing
the University’s decision to stand would be analogous to implementing a quota
system by sex and would be contrary to the purpose of Title IX, which is designed to
encourage, not reduce, athletic opportunities. Moreover, the University’s goal of
gender balance is illegitimate, they argue, because it improperly assumes that men



      2
       The Hon. Rodney S. Webb, Chief Judge, United States District Court for the
District of North Dakota.

                                          -2-
and women have an equal interest in participating in University sports, an assumption
which they contend is not borne out by the evidence.

      After considering these arguments, discussed in detail below, we affirm the
decision of the District Court.

                                          I.

        On April 10, 1995, the University issued its Final Gender Equity in Athletics
Report. Appellee’s Appendix (App.) 10-15. To increase the rate of participation of
women in athletics and to reduce the disparity between male and female participation
rates, the report recommended the addition of three women’s sports: golf in 1995,
tennis in 1997, and soccer in 1999. App. 12. The report recommended leaving men’s
sports unchanged but reexamining men’s sports programs during 1997-98. App. 13.
The following table compares, for a four-year period following issuance of the report,
the percentage of the student body that was male with the percentage of athletes that
was male and the resources made available to male athletes.

Table. Participation rates and resources allocated to male athletes
(per centum of total)
                                                                        Athletically
                                           Operating   Recruiting            related
                                            expenses expenditures      financial aid
  Academic     Male under-        Male     for men’s    for men’s           to male
      year      graduates      athletes        teams        teams           athletes
    1996-97               52        73            74              86              75
    1997-98               52        71            70              81              70
    1998-99               51        65            69              79              68
 1999-2000                51        64                            77              63

App. 16, 17, 19, 20, 32-35, 53, 69, 75, 78-80.


                                          -3-
      On May 7, 1998, the University’s Intercollegiate Athletic Committee reported
that $95,000 needed to be cut from the athletic budget. App. 82. The University
implemented the budgetary contraction to address a $3 million shortfall in revenue
from tuition and to comply with Governor Edward Schafer’s request for a five per
centum overall budget reduction. App. 87, 90. On May 7, and again on May 22, the
committee discussed the possibility of discontinuing one men’s sport. App. 82, 84.
On May 29, the committee voted to eliminate the wrestling team, App. 85, thereby
saving $49,000.3 App. 82. On June 12, University President Kendall Baker approved
the committee’s recommendation to eliminate the wrestling program, effective
June 30, 1998. App. 86. On December 3, 1999, plaintiffs filed suit. Summary
judgment was granted in favor of the University on August 22, 2000.

                                          II.

       We review a district court’s grant of summary judgment de novo. Anderson
v. Franklin County, 192 F.3d 1125, 1131 (8th Cir. 1999). Summary judgment is
proper only when there is no genuine issue of material fact and, viewing the evidence
in the light most favorable to the nonmoving party, Bailey v. United States Postal
Service, 208 F.3d 652, 654 (8th Cir. 2000), the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c).

                 1. Statutory and Regulatory Background of Title IX

      Title IX prohibits educational institutions that receive federal financial support
from engaging in sex-based discrimination. It states, in relevant part: “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


      3
          The record does not show how the rest of the $95,000 reduction was made.

                                          -4-
or activity receiving Federal financial assistance . . ..” 20 U.S.C. § 1681(a). Pursuant
to the statute, the former Department of Health, Education, and Welfare (HEW) and
its successor departments, the Department of Health and Human Services (HHS) and
the Department of Education, promulgated regulations implementing the statute. See
Cohen v. Brown Univ., 991 F.2d 888, 894-95 (1st Cir. 1993) (explaining
transformation of agency and resulting duplicative regulatory oversight). The
regulations provide, in part, as follows:

      (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.

             . . .

      (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 . . ..


34 C.F.R. § 106.41 (2000) (Department of Education regulations) (emphasis added);
see also 45 C.F.R. § 86.41 (2000) (identical HHS regulations).

     To provide a clearer interpretation of what it meant by effective
accommodation, HEW promulgated a policy interpretation “to provide a framework

                                          -5-
within which the complaints can be resolved, and to provide institutions of higher
education with guidance on the requirements for compliance with Title IX in
intercollegiate athletic programs.” 44 Fed. Reg. 71413 (1979). This interpretation
requires an athletic program to meet one of three standards to accommodate
effectively the interests and abilities of members of both sexes so as to comply with
Title IX:

      (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. 71418 (1979).

       On January 16, 1996, the Department of Education issued a clarification
memorandum to provide further guidance regarding its policy interpretation. It
stated:



                                         -6-
      [T]he three-part test furnishes an institution with three individual
      avenues to choose from when determining how it will provide
      individuals of each sex with nondiscriminatory opportunities to
      participate in intercollegiate athletics. If an institution has met any part
      of the three-part test, [the Department’s Office for Civil Rights] will
      determine that the institution is meeting this requirement.


Department of Education, Office for Civil Rights, Clarification of Intercollegiate
Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996).

       The Department’s letter transmitting the memorandum further explained that
“an institution can choose which part of the test it plans to meet.” Letter from Norma
V. Cantú, Assistant Secretary for Civil Rights, Department of Education (Jan. 16,
1996). Compliance with the first prong of the test “affords an institution a ‘safe
harbor’ for establishing that it provides nondiscriminatory participation
opportunities.” Id. The letter goes on to state that limiting men’s teams in pursuit of
equalizing athletic opportunities between the sexes is consistent with Title IX. “An
institution can choose to eliminate or cap teams as a way of complying with part one
of the three-part test.” Id.

    2. Deference Owed to the Department of Education’s Policy Interpretation

       The University’s Final Gender Equity in Athletics Report reveals, and plaintiffs
do not dispute, that the University was attempting to comply with the first part of the
test. App. 11. Thus, the University relies on the policy interpretation, the
clarification memorandum, and the transmittal letter to argue that its decision to cut
men’s wrestling was not a violation of Title IX, but rather an action taken to comply
with Title IX. It argues that the policy interpretation on which it relies for its
defense—the agency’s interpretation of its own regulations—is entitled to substantial



                                          -7-
deference. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“We must
give substantial deference to an agency’s interpretation of its own regulations.”).

       In response, plaintiffs contend, citing Christensen v. Harris County, 529 U.S.
576 (2000), that substantial deference is not due to any of these documents, so the
University’s reliance on them is misplaced. Id. at 587 (“Interpretations such as those
in opinion letters—like interpretations contained in policy statements, agency
manuals, and enforcement guidelines, all of which lack the force of law—do not
warrant Chevron-style deference.”). Assuming Chevron deference is not due, it is still
true that “interpretations contained in formats such as opinion letters are ‘entitled to
respect’ . . . to the extent that these interpretations have the ‘power to persuade.’ ”
Christensen, 529 U.S. at 587 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)); cf. Christensen, 529 U.S. at 590-91 (Scalia, J., concurring) (listing cases in
which Court accorded deference to agency interpretations issued in formats other than
formal regulations and adjudications).

        As the Christensen Court recognized, Auer v. Robbins, 519 U.S. 452 (1997),
requires that we give deference to an agency’s interpretation of its own regulations,
if the regulations are ambiguous. Christensen, 529 U.S. at 588 (citing Auer, 519 U.S.
at 461). If the regulation is ambiguous, then we defer to any reasonable construction
by the Department of Education, even though its interpretation might “not be the best
or most natural one by grammatical or other standards.” Pauley v. BethEnergy Mines,
Inc., 501 U.S. 680, 702 (1991). Here, the regulatory language that the policy
interpretation construes describes how an institution can provide “equal athletic
opportunity for members of both sexes” and “effectively accommodate the interests
and abilities of members of both sexes.” 34 C.F.R. § 106.41(c) (2000). As the high
number of suits that arose immediately after promulgation of the regulation attests,
this language is written at a high level of abstraction and, as a result, is ambiguous.
See Cohen, 991 F.2d at 896 (noting that in three years following promulgation of
regulations but prior to issuance of policy interpretation, HEW received over one

                                          -8-
hundred discrimination complaints involving more than fifty schools). We conclude,
as did the Cohen court, that the policy interpretation constitutes a reasonable and
“considered interpretation of the regulation.” Id. Therefore, controlling deference
is due it. See Glover v. Standard Fed. Bank, 283 F.3d 953, 962 (8th Cir. 2002)
(discussing Supreme Court cases and finding agency’s policy interpretations of its
own regulations to be “controlling authority”).

       Finally, although plaintiffs argue that the “flawed” policy interpretation should
not receive substantial deference, nowhere in their briefs or, crucially, before the
District Court, do they argue that the policy interpretation is not valid. The validity
of the interpretation was not put in question before the District Court, so the Court
relied, as it was supposed to, on that interpretation. As we are not presented with that
issue here, consideration of it will have to await another day.4

       The plaintiffs next argue that even if the policy interpretation is entitled to
deference, the University has not established that it was required to engage in gender
balancing. They argue that the University could have chosen to pursue one of the
other two alternatives under the interpretation and that it has failed to show that it has
not actually met either of those alternatives.

      Although plaintiffs make this argument, they also recognize that the University
does not contend that gender proportionality is required, only that it is permissible.
The University’s position is correct. Title IX states:

      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

      4
       It is worth noting that the interpretation has guided the Office for Civil Rights’
enforcement of nondiscrimination in athletics for over two decades, without change
from Congress. No court has ever held it to be invalid.

                                           -9-
      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. § 1681(b) (emphasis added). Thus, although Title IX does not require
proportionality, the statute does not forbid it either. And the gender make-up of
athletic participation is certainly relevant to a determination of whether a school is in
compliance with Title IX. As the statute goes on to say: “[T]his subsection shall not
be construed to prevent the consideration . . . 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.

                   3. The Availability of Private Outside Funding

        In the complaint, plaintiffs alleged that the University eliminated the men’s
wrestling program to attain proportionality between the gender composition of
athletic teams and the gender composition of the student body. App. 6. And on
summary judgment, the University stipulated that it had eliminated the program for
purposes of gender balancing. Contrary to the plaintiffs’ apparent belief, however,
this stipulation is not inconsistent with the fact—which plaintiffs do not dispute—that
the athletic department’s budget had to be reduced in the face of a tuition shortfall
and the Governor’s proposed University-wide funding cut.5 Thus, it is undisputed



      5
        In their opening brief, plaintiffs state that “in the spring of 1998, Governor
[Schafer] rescinded his tentative 5% cut stating that it was only a practice.”
Appellant’s Brief 2. We do not know what this sentence means. In any event,
plaintiffs furnish no citation to the record, and nothing in the record appears to
support this point. Regardless of the outcome of the Governor’s proposal, the
University did implement funding cuts.

                                          -10-
that the University eliminated the wrestling team to improve gender balance in the
context of a budgetary contraction.

       The plaintiffs attempt to circumvent the issue of the budget reduction by
alleging that a private donor was available to fund the wrestling program and,
therefore, that the University could have eliminated its funding without canceling the
entire program. As a result, they argue, budgetary issues raised by the University are
a red herring designed to disguise the University’s true discriminatory motive.

      There are several problems with the plaintiffs’ argument. First, the person who
offered to fund the program, Dan Sampson, did not say how much he would provide
(indeed, he stated only that he would cover “shortfalls in allocation to the program
by UND,” not that he would fund the entire program) or how long his funding would
continue. App. 105 (Affidavit of Dan Sampson).

       More importantly, however, a public university cannot avoid its legal
obligations by substituting funds from private sources for funds from tax revenues.
Once a university receives a monetary donation, the funds become public money,
subject to Title IX’s legal obligations in their disbursement. As the District Court
properly explained, outside funding is not a defense for “a university which provides
more than substantially proportionate athletic opportunity to one gender in violation
of Title IX.” Chalenor v. Univ. of N.D., No. 2-99cv-170, slip op. at 7 (Aug. 22, 2000)
(reproduced at App. 113). Thus, the District Court correctly concluded: “A school
may not skirt the requirement of providing both sexes equal opportunity in athletic
programs by providing one sex more than substantially proportionate opportunity
through the guise of ‘outside funding.’ ” Chalenor, No. 2-99cv-170, slip op. at 8.
The University had no obligation to accept the donation, and, even if it had,
disbursement of the funds still would have been subject to the strictures of Title IX.




                                        -11-
       Nevertheless, plaintiffs use their argument that the University faced no budget
constraint to attempt to distinguish this case from relevant case law from other
circuits holding that a university can comply with Title IX by limiting athletic
opportunities for men only. Plaintiffs’ argument is without merit. This case, like the
cases from other circuits and all cases involving distribution of university funds,
involves budget constraints. And, as the Ninth Circuit noted in Neal v. Bd. of Trs.
of Cal. State Univs., 198 F.3d 763 (9th Cir. 1999), “[e]very court, in construing the
Policy Interpretation and the text of Title IX, has held that a university may bring
itself into Title IX compliance by increasing athletic opportunities for the
underrepresented gender (women in this case) or by decreasing athletic opportunities
for the overrepresented gender (men in this case).” Id. at 769-70.

       The cases from other circuits include: Neal, 198 F.3d at 771 (allowing
university to make gender-conscious decisions and noting that “the plain meaning of
the nondiscrimination principle set forth in 20 U.S.C. § 1681(a) does not bar remedial
actions designed to achieve substantial proportionality between athletic rosters and
student bodies”); Boulahanis v. Bd. of Regents, 198 F.3d 633, 638 (7th Cir. 1999)
(holding that university’s elimination of men’s soccer and men’s wrestling teams “is
not a violation of Title IX as long as men’s participation in athletics continues to be
‘substantially proportionate’ to their enrollment”) (citation omitted), cert. denied, 530
U.S. 1284 (2000); Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 275 (6th Cir.
1994) (noting that “[a]n institution need not pour ever-increasing sums into its
athletic programs in order to bring itself into compliance, but has the option of
reducing opportunities for the overrepresented gender while keeping opportunities
for the underrepresented gender stable”) (citation omitted); Kelley v. Bd. of Trs., 35
F.3d 265, 270 (7th Cir. 1994) (allowing university to eliminate men’s swimming team
while retaining women’s swimming team because male athletes on the whole “would
continue to be more than substantially proportionate to their presence in the
University’s student body”), cert. denied, 513 U.S. 1128 (1995); Roberts v. Colo.
State Bd. of Agric., 998 F.2d 824, 830 (10th Cir.) (“Financially strapped institutions

                                          -12-
may still comply with Title IX by cutting athletic programs such that men’s and
women’s athletic participation rates become substantially proportionate to their
representation in the undergraduate population.”), cert. denied, 510 U.S. 1004 (1993);
Cohen, 991 F.2d at 898 n.15 (noting that university can “bring itself into compliance”
with Title IX “by reducing opportunities for the overrepresented gender while
keeping opportunities stable for the underrepresented gender (or reducing them to a
much lesser extent)”).

       Although these cases do not bind our Court, we find their reasoning sound, and
we are, in any event, reluctant to create a conflict within the circuits on the issue.
Aldens, Inc. v. Miller, 610 F.2d 538, 541 (8th Cir. 1979) (“Although we are not
bound by another circuit’s decision, we adhere to the policy that a sister circuit’s
reasoned decision deserves great weight and precedential value. As an appellate
court, we strive to maintain uniformity in the law among the circuits, wherever
reasoned analysis will allow, thus avoiding unnecessary burdens on the Supreme
Court docket.”), cert. denied, 446 U.S. 919 (1980).

       Finally, plaintiffs contend not only that Title IX prohibits gender balancing,
but, in a footnote in their brief, that the Fourteenth Amendment forbids it as well.
Plaintiffs’ Reply Brief 8 n.2. However, plaintiffs admit that they “did not assert a
constitutional violation” in the District Court, ibid., so we need not decide the
constitutional issue.

                4. Request for Disqualification of the District Judge

       Finally, plaintiffs contend that because Chief Judge Webb was graduated from
and is a contributor to the University of North Dakota, “there seems to be a major
conflict of interest” affecting their right to a fair and impartial hearing. Appellants’
Brief 7. This argument is wholly without merit. We reject it emphatically. Both the
fact that Judge Webb is an alumnus of the University and the fact that he has

                                         -13-
contributed financially to the University are immaterial, unless the facts indicated a
specific and particular interest in the wrestling program or some other particularly
relevant problem. Here, there are no facts indicating how much was given or for what
specific purpose, if any. See Lunde v. Helms, 29 F.3d 367, 370-71 (8th Cir. 1994)
(“We do not think that the district judge’s having graduated from the university law
school, even though the university is a party defendant, without more, is a reasonable
basis for questioning the judge’s impartiality. . . . We do not think that making
alumni contributions or participating in university educational programs, without
more, is a reasonable basis for questioning the judge’s impartiality.”) (citations
omitted), cert. denied, 513 U.S. 1155 (1995).

                                  III. Conclusion

     For the foregoing reasons, we affirm the District Court’s grant of summary
judgment in favor of the University.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -14-
