
USCA1 Opinion

	




                            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 & Michaelson, and Beverly E. Ledbetter were on  brief,          _______________________      ____________________          for appellants.               Lynette  Labinger, with  whom  Roney &  Labinger, Sandra  L.               _________________              _________________  __________          Duggan,  Kronfeld,  Newberg &  Duggan,  Arthur  H. Bryant,  Trial          ______   ____________________________   _________________   _____          Lawyers  for Public  Justice,  P.C., Raymond  Marcaccio, Blish  &          ___________________________________  __________________  ________          Cavanagh, Amato A.  DeLuca, and Mandell, DeLuca &  Schwartz, Ltd.          ________  ________________      _________________________________          were on brief, for appellees.               Linda S. Stein, Margaret M.  Clark, Steptoe & 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          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          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          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.                                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.                               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.                              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          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.                                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.                               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          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          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  &  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 & 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.                              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.                               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.                              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.                                   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          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 & 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          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                    The preliminary  injunction is affirmed,  the temporary                    _______________________________________________________          stay  is dissolved,  and the  cause is  remanded to  the district          stay  is dissolved,  and the  cause is  remanded to  the district          _________________________________________________________________          court for further proceedings.  Costs to appellees.          court for further proceedings.  Costs to appellees.          _____________________________   __________________                                          43
