
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                  __________________          No. 95-2205                                  AMY COHEN, ET AL.,                               Plaintiffs - Appellees,                                          v.                                  BROWN UNIVERSITY,                               Defendants - Appellants.                                  __________________                                     ERRATA SHEET               The  opinion of this Court  issued on November  21, 1996, is          amended as follows:               On  page 9,  line 15,  replace  "women.   Id. at  981." with                                                         ___          "women, id. at 981.".                  ___               On page 10, line 18, delete extra space between "sports" and          "--".               On page 11, line 9, delete "id.,".                                           ___               On  page 11, line 12, delete "totals," id." and replace with                                                      ___          "totals."  Id.".                     ___               On page 11, line 16, delete "id.,".                                            ___               On  page  15,  line  36,  delete  "then"  and  replace  with          "former".               On page 24, line 13, insert comma after "and".               On page 26, line 14, delete "mere" and replace with "bare".               On page 38,  line 17, insert "for women" between "treatment"          and "by".               On page 42, line 18, replace "to women" with "for women".               On page 43, line 8, delete "Cf." and replace it with "See".                                           ___                       ___               On   page   47,   line    7,   delete   "athletics"   before          "opportunities".               On page 55, lines 9 and 10, delete "in varsity competition,"          and replace it with "at the varsity level,".               On page 59, line 19, delete "(1989)".               On page 62, line 5, delete "(1973)".               On page 62, line 6, delete "(1989)".               On page 64, lines  28 and 29, replace "is  merely" with "is,          in effect,".               On page 65,  line 21,  insert "as it  applies to  athletics"          between "Title IX" and "is".               On  page 68, line 2,  insert a new  paragraph beginning with          "Brown first contends".               On  page 68, line 9,  insert a new  paragraph beginning with          "Brown also suggests".               On page 79, line 22, replace "Court" with "court".               On page 80, lines 3 and 6, replace "Court" with "court".                On page 86, lines 5 and 13, replace "Court" with "court".                 On  page 88,  line 22, cite  to the  C.F.R. should  be:  "34          C.F.R.   106.41(b) (1995)".               On page 89, replace text on line 1 with: "one  sex, however,          and where  "athletic opportunities for  members of that  sex have          previously  been limited,  members of  the excluded  sex must  be          allowed to".               On  page 89, lines 11-15:   Delete two sentences:  "When the          university  chooses a  non-contact sport,  34 C.F.R.    106.41(b)          requires  that the school sponsors  one team for  each gender, or          allow both sexes to try-out.  If the university chooses a contact          sport, however, try-outs can be restricted to one sex.".               On page 89, line 17, delete "hockey".               On   page   95,  last   line,   delete   comma  after   "the          interpretation chosen".               On page 96, line 10, replace "Appellees" with "appellees".               On page 98, line 17, replace "Appellees" with "appellees".               On page 100, line  19, replace "Appellees" with "appellees".               On  page  101, lines  8  and  11,  replace "Appellees"  with          "appellees".                                         -2-               On page 103, line 2, replace "Court" with "court".               On page 104, line 30, replace "female" with "females".               On page 105, line 18, replace "Court" with "court".                                         -3-                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2205                                  AMY COHEN, ET AL.,                               Plaintiffs - Appellees,                                          v.                              BROWN UNIVERSITY, ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Joan A.  Lukey and Walter  B. Connolly, Jr., with  whom Hale               ______________     ________________________             ____          and Dorr, Alison B. Marshall,  Miller, Canfield, Paddock & Stone,          ________  __________________   _________________________________          Beverly E.  Ledbetter, General Counsel, Brown  University, Julius          _____________________                                      ______          C. Michaelson, Jeffrey S.  Michaelson and Michaelson & Michaelson          _____________  ______________________     _______________________          were on brief for appellants.               Martin  Michaelson, with  whom Amy  Folsom Kett,  Suzanne M.               __________________             ________________   __________          Bonnet, Hogan & Hartson L.L.P.  and Sheldon E. Steinbach, General          ______  ______________________      ____________________          Counsel,  American  Council  on  Education,   were  on  brief for          American   Council  on   Education,   Association   of   American          Universities,  National Association  of Independent  Colleges and          Universities,  and National Association of State Universities and          Land-Grant Colleges, amici curiae.               George  A. Davidson,  Carla  A. Kerr,  Seth  D. Rothman  and               ___________________   ______________   ________________          Hughes  Hubbard &  Reed on  brief  for Baylor  University, Boston          _______________________          University,  Colgate  University,  College  of  the  Holy  Cross,          Colorado   State   University,   Fairfield   University,   George          Washington   University,   John  Hopkins   University,  Lafayette          College, New  York University,  Saint  Peter's College,  Southern          Methodist University, Tulane  University, University of Arkansas,          University of Nebraska, University of Notre Dame, and Wake Forest          University, amici curiae.               Melinda Ledden Sidak  and Anita  K. Blair on  brief for  The               ____________________      _______________          Independent Women's Forum, amicus curiae.               Stephen S. Ostrach,  Todd S. Brilliant and New England Legal               __________________   _________________     _________________                                         -1-          Foundation on  brief for  American Baseball  Coaches Association,          __________          College Swim  Coaches Association of  America, National Wrestling          Coaching Association and United States Water Polo, amici curiae.               Lynette  Labinger,  with whom  Roney  &  Labinger, Amato  A.               _________________              __________________  _________          DeLuca,  DeLuca &  Weizenbaum, Ltd.,  Raymond Marcaccio,  Blish &          ______   __________________________   _________________   _______          Cavanagh,  Sandra L. Duggan, Sandra L. Duggan, Esq., P.C., Arthur          ________   ________________  ____________________________  ______          H.  Bryant, Leslie  A. Brueckner,  and Trial  Lawyers  for Public          __________  ____________________       __________________________          Justice, P.C. were on brief for appellees.          _____________               Deborah L. Brake, with whom Marcia D. Greenberger, Judith C.               ________________            _____________________  _________          Appelbaum  and  National Women's  Law  Center were  on  brief for          _________       _____________________________          National Women's Law  Center, American Association  of University          Women/AAUW Legal Advocacy  Fund, American  Civil Liberties  Union          Women's Rights Project, California Women's Law Center, Center For          Women Policy  Studies,  Connecticut Women's  Education and  Legal          Fund, Equal Rights Advocates, Feminist Majority Foundation, Girls          Incorporated, National Association for  Girls and Women in Sport,          National Association  for Women in Education,  National Coalition          for  Sex  Equity in  Education,  National  Commission on  Working          Women,  National  Council of  Administrative Women  in Education,          National Education  Association, National Organization  for Women          Foundation,  Now  Legal  Defense  and  Education  Fund,  National          Softball  Coaches  Association,  Northwest  Women's  Law  Center,          Parents  for  Title IX,  Rhode  Island  Affiliate American  Civil          Liberties  Union,  Women  Employed,  Women's  Basketball  Coaches          Association, Women's  Law Project,  Women's  Legal Defense  Fund,          Women's Sports Foundation, and YWCA of the USA, amici curiae.               Deval L.  Patrick, Assistant Attorney General, Isabelle Katz               _________________                              _____________          Pinzler, Deputy Assistant Attorney  General, Dennis J. Dimsey and          _______                                      ________________          Lisa W. Edwards, Attorneys,  Department of Justice, on brief  for          _______________          the United States, amicus curiae.                                 ____________________                                  November 21, 1996                                 ____________________                                         -2-                                         -2-                      BOWNES,  Senior Circuit  Judge.   This  is a  class                      BOWNES,  Senior Circuit  Judge.                               _____________________            action lawsuit charging Brown University, its  president, and            its   athletics   director   (collectively    "Brown")   with            discrimination  against  women   in  the  operation   of  its            intercollegiate athletics program, in  violation of Title  IX            of  the Education Amendments of 1972,  20 U.S.C.    1681-1688            ("Title IX"), and its  implementing regulations, 34 C.F.R.               106.1-106.71.    The plaintiff  class comprises  all present,            future, and  potential  Brown University  women students  who            participate, seek  to participate, and/or  are deterred  from            participating in intercollegiate athletics funded by Brown.                      This suit was initiated in response to the demotion            in  May 1991  of  Brown's women's  gymnastics and  volleyball            teams  from university-funded varsity  status to donor-funded            varsity status.   Contemporaneously, Brown demoted two  men's            teams, water polo and  golf, from university-funded to donor-            funded varsity status.  As a consequence  of these demotions,            all four teams lost,  not only their university funding,  but            most of the support and privileges that accompany university-            funded varsity status at Brown.                        Prior  to the trial on the merits that gave rise to            this appeal, the  district court  granted plaintiffs'  motion            for class  certification  and denied  defendants'  motion  to            dismiss.    Subsequently,  after  hearing  fourteen  days  of            testimony,  the district court granted plaintiffs' motion for                                         -3-                                         -3-            a  preliminary  injunction, ordering,  inter  alia,  that the                                                   _____  ____            women's gymnastics  and  volleyball teams  be  reinstated  to            university-funded varsity status,  and prohibiting Brown from            eliminating or reducing the status or funding of any existing            women's  intercollegiate varsity  team  until  the  case  was            resolved on the merits.   Cohen v. Brown Univ., 809  F. Supp.                                      _____    ___________            978, 1001 (D.R.I.  1992) ("Cohen I").  A  panel of this court                                       _______            affirmed the district court's decision granting a preliminary            injunction to the plaintiffs.  Cohen v. Brown Univ., 991 F.2d                                           _____    ___________            888, 907  (1st Cir.  1993) ("Cohen  II").   In  so doing,  we                                         _________            upheld  the  district  court's  analysis and  ruled  that  an            institution   violates   Title   IX   if   it   ineffectively            accommodates  its  students'   interests  and  abilities   in            athletics  under 34 C.F.R.    106.41(c)(1) (1995), regardless            of its performance with respect to other Title IX areas.  Id.                                                                      ___            at 897.                       On remand,  the district court  determined after  a            lengthy  bench trial  that Brown's  intercollegiate athletics            program  violates Title  IX and  its  supporting regulations.            Cohen v. Brown  Univ., 879  F. Supp. 185,  214 (D.R.I.  1995)            _____    ____________            ("Cohen III").   The district  court ordered Brown  to submit              _________            within  120  days a  comprehensive  plan  for complying  with            Title IX,  but  stayed  that  portion of  the  order  pending            appeal.   Id.    The  district court  subsequently  issued  a                      ___            modified order,  requiring Brown to submit  a compliance plan                                         -4-                                         -4-            within 60 days.  Modified Order of May 4, 1995.   This action            was taken to ensure  that the Order was "final"  for purposes            of  this court's  jurisdiction,  and to  expedite the  appeal            process.  Id.  Finding that Brown's proposed compliance  plan                      ___            was not comprehensive and  that it failed to comply  with the            opinion  and order of Cohen III,  the district court rejected                                  _________            the plan and  ordered in its place specific relief consistent            with  Brown's  stated  objectives  in formulating  the  plan.            Order of August 17, 1995  at 11.  The court's remedial  order            required Brown  to elevate and  maintain at university-funded            varsity status the  women's gymnastics, fencing,  skiing, and            water polo teams.  Id. at 12.  The  district court's decision                               ___            to  fashion specific  relief  was  made,  in part,  to  avoid            protracted  litigation  over  the   compliance  plan  and  to            expedite the appeal  on the issue  of liability.  Id.  at 11.                                                              ___            The district  court  entered final  judgment on  September 1,            1995,  and on September  27, 1995, denied  Brown's motion for            additional  findings of fact and to amend the judgment.  This            appeal followed.                      Brown  claims error in  certain evidentiary rulings            made  during the trial and  in the district  court's order of            specific relief in place of Brown's proposed compliance plan.            In addition, and as in  the previous appeal, Brown challenges            on constitutional and statutory  grounds the test employed by            the   district   court   in   determining   whether   Brown's                                         -5-                                         -5-            intercollegiate athletics program complies with Title IX.  In            the  first  appeal, a  panel  of  this  court elucidated  the            applicable legal  framework, upholding the  substance of  the            district court's interpretation and application of the law in            granting  plaintiffs' motion  for a  preliminary injunction,1            and  rejecting essentially  the  same  legal arguments  Brown            makes here.                      Brown contends  that we  are free to  disregard the            prior  panel's explication of the  law in Cohen  II.  Brown's                                                      _________            efforts to circumvent the controlling effect  of Cohen II are                                                             ________            unavailing,  however,  because, under  the  law  of the  case            doctrine,  we are bound in  this appeal, as  was the district            court on  remand, by the prior panel's rulings of law.  While            we acknowledge that the  law of the case doctrine  is subject            to  exceptions, we conclude that none  applies here, and that            the  decision rendered by the prior panel in the first appeal            is not,  as Brown claims, "legally  defective."  Accordingly,            we decline Brown's invitation  to undertake plenary review of            issues decided in the  previous appeal and treat Cohen  II as                                                             _________            controlling authority, dispositive of  the core issues raised            here.                                              ____________________            1.  The prior  panel upheld  the district court's  rulings in            all respects save one.  We held that the district court erred            in placing upon Brown  the burden of proof under  prong three            of  the   three-part  test  used  to   determine  whether  an            intercollegiate athletics  program  complies with  Title  IX,            discussed infra.  Cohen II, 991 F.2d at 903.                        _____   ________                                         -6-                                         -6-                      We find  no error  in the district  court's factual            findings  or in its interpretation and application of the law            in determining that Brown violated  Title IX in the operation            of its  intercollegiate  athletics  program.    We  therefore            affirm  in all  respects  the district  court's analysis  and            rulings  on the  issue of  liability.   We do,  however, find            error in the  district court's award  of specific relief  and            therefore  remand   the  case  to  the   district  court  for            reconsideration of the remedy in light of this opinion.                                          I.                                          I.                      The   relevant   facts,   legal   principles,   and            procedural  history  of this  case  have  been set  forth  in            exhaustive  detail in  the previous  opinions issued  in this            case.  Thus, we recite the  facts as supportably found by the            district court in the course of the bench trial on the merits            in a somewhat abbreviated fashion.                       As  a Division  I  institution within  the National            Collegiate  Athletic Association ("NCAA") with respect to all            sports but football, Brown  participates at the highest level            of NCAA competition.2  Cohen III, 879 F. Supp. at 188.  Brown                                   _________            operates a two-tiered  intercollegiate athletics program with            respect to  funding:   although Brown provides  the financial            resources required to maintain its  university-funded varsity                                            ____________________            2.  Brown's  football team  competes  in  Division I-AA,  the            second  highest level of NCAA competition.  Cohen III, 879 F.                                                        _________            Supp. at 188 n.4.                                         -7-                                         -7-            teams,  donor-funded varsity  athletes must  themselves raise            the funds  necessary to  support their teams  through private            donations.   Id. at 189.   The district court noted  that the                         ___            four  demoted  teams  were  eligible  for  NCAA  competition,            provided  that they were able to raise the funds necessary to            maintain a sufficient level  of competitiveness, and provided            that they continued to comply with NCAA requirements.  Id. at                                                                   ___            189 n.6.  The  court found, however, that it is difficult for            donor-funded   varsity  athletes  to   maintain  a  level  of            competitiveness  commensurate with  their abilities  and that            these athletes  operate  at  a  competitive  disadvantage  in            comparison  to university-funded  varsity athletes.    Id. at                                                                   ___            189.  For example, the district court found that some schools            are reluctant to include  donor-funded teams in their varsity            schedules3 and  that donor-funded teams are  unable to obtain            varsity-level  coaching,  recruits,  and  funds  for  travel,            equipment, and post-season competition.  Id. at 189-90.                                                      ___                      Brown's decision  to demote the  women's volleyball            and  gymnastics teams and the men's water polo and golf teams            from university-funded varsity status  was apparently made in            response to a university-wide  cost-cutting directive.  Cohen                                                                    _____            I, 809 F. Supp. at 981.  The district court  found that Brown            _                                            ____________________            3.  Two schools  declined to include Brown  in future varsity            schedules when women's volleyball was demoted to donor-funded            status.  Cohen II, 991 F.2d at 892 n.2; Cohen I, 809 F. Supp.                     ________                       _______            at 993.                                         -8-                                         -8-            saved $62,028 by  demoting the women's  teams and $15,795  by            demoting the  men's teams,  but that the  demotions "did  not            appreciably affect the  athletic participation gender ratio."            Cohen III at 187 n.2.              _________                      Plaintiffs  alleged   that,  at  the  time  of  the            demotions,  the men  students  at Brown  already enjoyed  the            benefits  of a  disproportionately  large share  of both  the            university  resources   allocated   to  athletics   and   the            intercollegiate   participation  opportunities   afforded  to            student athletes.  Thus, plaintiffs contended, what  appeared            to  be the even-handed demotions of two men's and two women's            teams, in fact,  perpetuated Brown's discriminatory treatment            of  women  in  the   administration  of  its  intercollegiate            athletics program.       In  the  course  of the  preliminary            injunction  hearing, the  district court  found that,  in the            academic   year  1990-91,  Brown  funded  31  intercollegiate            varsity  teams, 16 men's teams and 15 women's teams, Cohen I,                                                                 _______            809  F.  Supp. at  980, and  that,  of the  894 undergraduate            students competing on these  teams, 63.3% (566) were  men and            36.7% (328) were women, id. at 981.  During the same academic                                    ___            year,  Brown's  undergraduate   enrollment  comprised   52.4%            (2,951) men and 47.6% (2,683) women.  Id.  The district court                                                  ___            also summarized  the history of athletics  at Brown, finding,            inter alia, that, while nearly all of the men's varsity teams            _____ ____            were established  before 1927,  virtually all of  the women's                                         -9-                                         -9-            varsity  teams  were created  between  1971  and 1977,  after            Brown's  merger with Pembroke College.  Id.  The only women's                                                    ___            varsity team created  after this period was  winter track, in            1982.  Id.                      ___                      In  the course  of  the trial  on  the merits,  the            district  court  found  that,  in  1993-94,  there  were  897            students participating in intercollegiate  varsity athletics,            of which 61.87% (555)  were men and 38.13% (342)  were women.            Cohen  III, 879 F.  Supp. at  192.   During the  same period,            __________            Brown's undergraduate enrollment comprised 5,722 students, of            which  48.86% (2,796) were men and 51.14% (2,926) were women.            Id.   The  district  court found  that,  in 1993-94,  Brown's            ___            intercollegiate athletics  program consisted of 32  teams, 16            men's teams  and 16 women's teams.   Id.  Of  the university-                                                 ___            funded  teams, 12 were men's teams and 13 were women's teams;            of the donor-funded  teams, three were women's teams and four            were men's teams.  Id.   At the time of trial,  Brown offered                               ___            479  university-funded varsity positions for men, as compared            to 312 for women;  and 76 donor-funded varsity  positions for            men, as  compared to 30 for women.   Id. at 211.  In 1993-94,                                                 ___            then, Brown's  varsity program -- including  both university-            and donor-funded  sports -- afforded over  200 more positions            for  men than  for  women.   Id.  at 192.   Accordingly,  the                                         ___            district court found that Brown maintained a 13.01% disparity            between female participation in intercollegiate athletics and                                         -10-                                         -10-            female student enrollment,  id. at 211, and that  "[a]lthough                                        ___            the number of  varsity sports  offered to men  and women  are            equal,  the  selection  of  sports  offered  to  each  gender            generates far  more individual  positions  for male  athletes            than for female athletes," id. at 189.                                        ___                      In  computing  these  figures, the  district  court            counted  as participants  in  intercollegiate  athletics  for            purposes of Title IX analysis those athletes who were members            of  varsity  teams  for the  majority  of  the  last complete            season.  Id. at 192.  Brown argued at trial that "there is no                     ___            consistent measure of actual participation rates because team            size varies throughout the  athletic season," and that "there            is  no  consistent  measure  of  actual  participation  rates            because  there are  alternative definitions  of 'participant'            that   yield  very   different  participation   totals."  Id.                                                                      ___            Reasoning that "[w]here both  the athlete and coach determine            that  there is a place  on the team for a  student, it is not            for this  Court to second-guess their judgment and impose its            own, or anyone  else's, definition of  a valuable or  genuine            varsity  experience,"  the  district  court   concluded  that            "[e]very  varsity   team  member   is  therefore   a  varsity            'participant.'"  Id. (original  emphasis omitted).  Thus, the                             ___            district court held that                       the "participation opportunities" offered                      by   an   institution  are   measured  by                      counting   the  actual   participants  on                                      ______   ____________                      intercollegiate  teams.    The number  of                                         -11-                                         -11-                      participants in  Brown's varsity athletic                      program accurately reflects the number of                      participation opportunities  Brown offers                      because   the  University,   through  its                      practices  "predetermines" the  number of                      athletic  positions   available  to  each                      gender.              Id. at 202-03.             ___                      The district  court found from  extensive testimony            that the donor-funded women's gymnastics, women's fencing and            women's ski teams, as well as at least one women's club team,            the  water  polo  team,  had demonstrated  the  interest  and            ability to compete at the top varsity level and would benefit            from university funding.4  Id. at 190.                                       ___                      The  district  court did  not  find  that full  and                                                ___            effective   accommodation  of  the  athletics  interests  and            abilities  of  Brown's  female  students  would  disadvantage            Brown's male students.                                         II.                                         II.                      Title IX  provides that "[n]o person  in the United            States  shall,   on  the  basis  of  sex,  be  excluded  from            participation in, be denied the benefits  of, or be subjected            to  discrimination under  any education  program or  activity            receiving  Federal  financial  assistance."   20  U.S.C.A.                                               ____________________            4.  The district court noted that "there may be other women's            club sports  with sufficient interest and  ability to warrant            elevation  to varsity  status," but  that plaintiffs  did not            introduce  at trial  substantial  evidence demonstrating  the            existence of  other women's club teams  meeting the criteria.            Cohen III, 879 F. Supp. at 190 n.14.            _________                                         -12-                                         -12-            1681(a) (West 1990).  As a  private institution that receives            federal financial  assistance,  Brown is  required to  comply            with Title IX.                        Title   IX  also  specifies  that  its  prohibition            against gender  discrimination shall  not "be interpreted  to            require any educational institution  to grant preferential or            disparate treatment to the  members of one sex on  account of            an  imbalance which may  exist" between  the total  number or            percentage  of  persons  of  that sex  participating  in  any            federally  supported  program  or  activity,  and  "the total            number or percentage of persons of that sex in any community,            State,  section, or other area."  20 U.S.C.A.   1681(b) (West            1990).  Subsection (b) also provides, however, that it "shall            not be  construed to prevent the  consideration in any .  . .            proceeding under this chapter of statistical evidence tending            to show that  such an  imbalance exists with  respect to  the            participation  in, or receipt  of the  benefits of,  any such            program or activity by the members of one sex."  Id.                                                             ___                      Applying   1681(b), the prior panel held that Title            IX "does  not mandate  strict numerical equality  between the            gender balance of a college's athletic program and the gender            balance of  its student body."   Cohen  II, 991 F.2d  at 894.                                             _________            The panel  explained that,  while evidence of  a gender-based            disparity in  an institution's athletics  program is relevant            to a determination of noncompliance, "a court assessing Title                                         -13-                                         -13-            IX compliance may not  find a violation solely  because there                                                    ______            is  a   disparity  between  the  gender   composition  of  an            educational  institution's student  constituency, on  the one            hand, and its athletic programs, on the other hand."   Id. at                                                                   ___            895.                            Congress  enacted  Title  IX  in  response  to  its            finding -- after extensive hearings held in 1970 by the House            Special   Subcommittee   on   Education   --   of   pervasive            discrimination  against  women  with respect  to  educational            opportunities.  118 Cong.  Rec. 5804 (1972) (remarks  of Sen.            Bayh); North  Haven Bd. of Educ.  v. Bell, 456 U.S.  512, 523                   _________________________     ____            n.13 (1982).                       Title IX  was passed  with two objectives  in mind:            "to   avoid  the   use  of   federal  resources   to  support            discriminatory   practices,"   and  "to   provide  individual            citizens  effective  protection  against   those  practices."            Cannon  v. University of  Chicago, 441 U.S.  677, 704 (1979).            ______     ______________________            To  accomplish   these  objectives,  Congress   directed  all            agencies  extending  financial    assistance  to  educational            institutions to develop procedures for  terminating financial            assistance to institutions that violate  Title IX.  20 U.S.C.              1682.                      The  agency responsible for  administering Title IX            is the United States Department of Education ("DED"), through                                         -14-                                         -14-            its  Office for  Civil Rights  ("OCR").5   Congress expressly            delegated to DED the  authority to promulgate regulations for            determining whether an athletics program complies with  Title            IX.    Pub.  L.  No.  93-380,  88  Stat.  612  (1974).6   The            regulations specifically  address athletics  at 34 C.F.R.                106.37(c)  and 106.41.  The regulation at issue in this case,            34 C.F.R.   106.41 (1995), provides:                           (a) General. No person shall, on the                               _______                      basis   of   sex,   be    excluded   from                      participation in, be denied  the benefits                      of, be treated  differently from  another                      person  or   otherwise  be  discriminated                      against    in     any    interscholastic,                      intercollegiate,   club   or   intramural                      athletics  offered by a recipient, and no                      recipient   shall    provide   any   such                      athletics separately on such basis.                           (b) Separate teams.  Notwithstanding                               ______________                      the requirements of paragraph (a) of this                                            ____________________            5.  Agency  responsibility for  administration  of  Title  IX            shifted from the Department  of Health, Education and Welfare            ("HEW") to DED when HEW split into two agencies,  DED and the            Department of Health and Human Services.  The regulations and            agency documents discussed herein were originally promulgated            by HEW,  the  administering agency  at  the time,  and  later            adopted by the present administering agency, DED.  See  Cohen                                                               ___  _____            II, 991 F.2d at 895; Cohen III, 879 F. Supp. at 194-95 n.23.             __                   _________            For simplicity, we treat DED as the promulgating agency.            6.   HEW  apparently received an unprecedented 9,700 comments            on the proposed Title IX athletics regulations, see Haffer v.                                                            ___ ______            Temple Univ. of the Commonwealth Sys. of Higher Educ., 524 F.            _____________________________________________________            Supp.   531,  536   n.9   (1981)  (citing   Thomas  A.   Cox,            Intercollegiate Athletics and Title IX, 46 Geo. Wash. L. Rev.            ______________________________________            34, 40 (1977) ("Cox")), prompting former HEW Secretary Caspar            Weinberger to remark, "I  had not realized until the  comment            period that athletics  is the single most  important thing in            the  United  States," id.  (citing  Cox at  34,  quoting N.Y.                                  ___            Times, June 27, 1975, at 16, col. 4).                                           -15-                                         -15-                      section,  a  recipient  may   operate  or                      sponsor  separate  teams  for members  of                      each sex where selection of such teams is                      based  upon  competitive  skill   or  the                      activity  involved  is  a contact  sport.                      However,  where  a recipient  operates or                      sponsors a team in a particular sport for                      members  of  one   sex  but  operates  or                      sponsors no  such team for members of the                      other sex, and athletic opportunities for                      members of that  sex have previously been                      limited, members of the excluded sex must                      be   allowed  to  try-out  for  the  team                      offered  unless the  sport involved  is a                      contact sport.  For the  purposes of this                      part,  contact   sports  include  boxing,                      wrestling,  rugby, ice  hockey, football,                      basketball and other  sports the  purpose                      or  major  activity  of   which  involves                      bodily contact.                            c)   Equal Opportunity.  A recipient                                _________________                      which      operates      or      sponsors                      interscholastic, intercollegiate, club or                      intramural athletics  shall provide equal                      athletic opportunity for members  of both                      sexes.    In  determining  whether  equal                      opportunities are  available the Director                      will consider, among other factors:                           (1)  Whether the selection of sports                      and  levels  of  competition  effectively                      accommodate  the interests  and abilities                      of members of both sexes;                           (2) The provision  of equipment  and                      supplies;                            (3) Scheduling of games and practice                      time;                           (4) Travel and per diem allowance;                           (5) Opportunity  to receive coaching                      and academic tutoring;                           (6) Assignment  and compensation for                      coaches and tutors;                           (7)   Provision  of   locker  rooms,                      practice and competitive facilities;                           (8)   Provision   of   medical   and                      training facilities and services;                           (9) Provision of housing  and dining                      facilities and services;                           (10) Publicity.                                         -16-                                         -16-                      In  the  first  appeal,   this  court  held  that  an          institution's failure  effectively  to accommodate  both  genders          under    106.41(c)(1) is sufficient  to establish a  violation of          Title IX.  Cohen II, 991 F.2d at 897.                       ________                      In 1978, several years  after the promulgation of the          regulations,  OCR published  a proposed  "Policy Interpretation,"          the  purpose of which was  to clarify the  obligations of federal          aid recipients under Title IX  to provide equal opportunities  in          athletics  programs.  "In  particular, this Policy Interpretation          provides a means to  assess an institution's compliance  with the          equal opportunity  requirements of  the regulation which  are set          forth  at [34 C.F.R.    106.37(c)  and 106.41(c)]."  44 Fed. Reg.          at  71,415.  After considering a large number of public comments,          OCR  published the  final Policy  Interpretation.   44 Fed.  Reg.          71,413-71,423  (1979).   While  the Policy  Interpretation covers          other  areas,   this   litigation  focuses   on  the   "Effective          Accommodation"   section,   which   interprets   34    C.F.R.              106.41(c)(1), the first of the non-exhaustive list of ten factors          to  be   considered  in   determining  whether  equal   athletics          opportunities  are  available  to   both  genders.    The  Policy          Interpretation establishes  a three-part  test, a  two-part test,          and factors  to be considered in determining  compliance under 34          C.F.R.    106.41(c)(1).  At  issue in this  appeal is  the proper                                         -17-                                         -17-          interpretation of  the first  of these, the  so-called three-part          test,7 which inquires as follows:                           (1)  Whether  intercollegiate  level                      participation opportunities  for male and                      female students are  provided in  numbers                      substantially   proportionate  to   their                      respective enrollments; or                           (2)  Where  the  members of  one sex                      have been and are  underrepresented among                      intercollegiate  athletes,   whether  the                      institution  can  show   a  history   and                      continuing practice  of program expansion                      which is demonstrably  responsive to  the                      developing interest and abilities  of the                      members of that sex; or                           (3)  Where  the  members of  one sex                      are         underrepresented        among                      intercollegiate    athletes,   and    the                      institution  cannot   show  a  continuing                      practice  of  program  expansion such  as                      that  cited  above,  whether  it  can  be                      demonstrated   that  the   interests  and                      abilities of the members of that sex have                      been  fully and  effectively accommodated                      by the present program.          44 Fed. Reg. at 71,418.                       The   district  court   held  that,   "because  Brown          maintains  a 13.01%  disparity  between female  participation  in          intercollegiate  athletics  and  female  student  enrollment,  it          cannot gain  the protection  of prong  one."   Cohen III, 879  F.                                                         _________          Supp.  at  211.    Nor  did  Brown  satisfy  prong  two.    While          acknowledging that  Brown "has  an impressive history  of program                                                        _______          expansion,"  the  district  court  found  that  Brown  failed  to                                            ____________________            7.  For clarification, we note  that the cases refer  to each            part of this three-part  test as a "prong" or  a "benchmark."            Prong  one is  also  called the  "substantial proportionality            test."                                          -18-                                         -18-          demonstrate  that it  has  "maintained a  continuing practice  of                                                    __________ ________          intercollegiate program expansion for women, the underrepresented          sex."  Id.  The court noted further that, because merely reducing                 ___          program  offerings  to   the  overrepresented  gender   does  not          constitute program expansion for the underrepresented gender, the          fact that  Brown has eliminated  or demoted  several men's  teams          does not amount to a continuing practice of program expansion for          women.   Id.   As to prong  three, the district  court found that                   ___          Brown had  not "fully  and effectively accommodated  the interest                          _____          and ability of the underrepresented sex  'to the extent necessary          to provide  equal  opportunity in  the  selection of  sports  and          levels  of competition available to members of both sexes.'"  Id.                                                                        ___          (quoting the Policy Interpretation, 44 Fed. Reg. at 71,417).                         On January  16, 1996,  DED released  a "Clarification          Memorandum,"  which does  not change  the existing  standards for          compliance,  but  which  does  provide  further  information  and          guidelines for  assessing compliance under  the three-part  test.          The Clarification Memorandum  contains many examples illustrating          how institutions may meet  each prong of the three-part  test and          explains how participation opportunities  are to be counted under          Title IX.                         The district court found that Brown predetermines the          approximate  number of  varsity  positions available  to men  and          women,  and, thus, that "the  concept of any  measure of unfilled          but  available athletic  slots  does not  comport with  reality."                                         -19-                                         -19-          Cohen III,  879  F.  Supp.  at 203  n.36.    The  district  court          _________          concluded  that  intercollegiate  athletics opportunities  "means          real opportunities,  not illusory  ones, and therefore  should be          measured by counting actual participants."  Id. at 204  (internal                               ______ ____________    ___          quotation marks and citations omitted).                              Title IX  is an anti-discrimination  statute, modeled          after Title VI of the Civil Rights Act of 1964, 42 U.S.C.   2000d          ("Title VI").8   See Cannon,  441 U.S. at  696 ("The drafters  of                           ___ ______          Title IX  explicitly assumed  that it  would  be interpreted  and          applied as Title VI had been during the preceding eight years.").          Thus, Title  IX  and  Title  VI  share  the  same  constitutional          underpinnings.   See Jeffrey H. Orleans,  An End To  The Odyssey:                           ___                      ______________________          Equal Athletic Opportunities  For Women,  3 Duke J.  Gender L.  &          _______________________________________          Pol'y 131, 133-34 (1996).                      Although the statute itself provides  for no remedies          beyond the termination  of federal funding, the Supreme Court has          determined  that  Title  IX  is enforceable  through  an  implied          private  right of  action,  Cannon, 441  U.S.  at 703,  and  that                                      ______          damages  are  available for  an  action brought  under  Title IX,          Franklin  v. Gwinnett County Pub.  Sch., 503 U.S.  60, 76 (1992).          ________     __________________________          The right to  injunctive relief  under Title IX  appears to  have          been impliedly accepted by the Supreme Court in Franklin.  Id. at                                                          ________   ___          64-66, 71-73.  In addition, a majority of the  Court in Guardians                                                                  _________                                            ____________________            8.  Title VI  prohibits discrimination on the  basis of race,            color, or  national origin in  institutions benefitting  from            federal funds.                                            -20-                                         -20-          Ass'n v. Civil  Serv. Comm'n,  463 U.S. 582  (1983), agreed  that          _____    ___________________          injunctive  relief and other  equitable remedies  are appropriate          for violations of Title VI.                          According to the  statute's senate sponsor,  Title IX          was intended to                      provide   for   the   women  of   America                      something that is rightfully theirs -- an                      equal  chance  to attend  the  schools of                      their choice, to  develop the skills they                      want, and to apply those  skills with the                      knowledge  that they  will  have  a  fair                      chance to secure the jobs of their choice                      with equal pay for equal work.          118  Cong.  Rec.  5808  (1972)  (remarks  of  Sen. Bayh)  (quoted                                                                     ______          in Haffer, 524 F. Supp. at 541).          __ ______                                         III.                                         III.                      In Cohen  II, a panel of this court squarely rejected                         _________          Brown's constitutional  and statutory  challenges  to the  Policy          Interpretation's three-part test, upholding the  district court's          interpretation   of  the   Title  IX   framework  applicable   to          intercollegiate athletics, Cohen II, 991 F.2d at 899-902, as well                                     ________          as  its grant  of  a  preliminary  injunction  in  favor  of  the          plaintiffs, id. at  906-07.   Despite the fact  that it  presents                      ___          substantially the  same legal  arguments in  this appeal as  were          raised  and decided in the prior appeal, Brown asserts that there          is  "no  impediment"  to this  court's  plenary  review  of these          decided issues.  We disagree.                      The law  of the case doctrine  precludes relitigation          of  the legal issues presented  in successive stages  of a single                                         -21-                                         -21-          case once those issues have been decided.  See 1B  James W. Moore                                                     ___          et al.,  Moore's  Federal  Practice     0.404[1]  (2d  ed.  1993)          (hereinafter  "Moore").   "The doctrine  of the  law of  the case          directs that a decision of an appellate court on an issue of law,          unless  vacated  or  set  aside, governs  the  issue  during  all          subsequent  stages of  litigation  in the  nisi  prius court  and                                                     ____  _____          thereafter  on any further appeal."  Commercial Union Ins. Co. v.                                               _________________________          Walbrook  Ins. Co.,  41 F.3d  764, 769  (1st. Cir.  1994) (citing          __________________          United States  v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert.          _____________     _______________                           _____          denied,  502  U.S. 862  (1991)).  The  reviewing court's  mandate          ______          "constitutes the  law of the case  on such issues of  law as were          actually considered  and decided  by the  appellate court,  or as          were  necessarily  inferred  from  the  disposition  on  appeal."          Commercial Union Ins. Co., 41  F.3d at 770 (citing 1B Moore  at            _________________________          0.404[10]).  The  doctrine requires  a trial court  on remand  to          dispose  of the  case in  accordance with  the  appellate court's          mandate by implementing "'both  the letter and the spirit  of the          mandate, taking  into account  the appellate court's  opinion and          the circumstances it embraces,'" United States v. Connell, 6 F.3d                                           _____________    _______          27,  30 (1st Cir. 1993)  (quoting United States  v. Kikumura, 947                                            _____________     ________          F.2d 72, 76 (3d  Cir. 1991)), and binds newly  constituted panels          to prior panel decisions on point, e.g., Irving v. United States,                                             ____  ______    _____________          49 F.3d  830, 833-34 (1st  Cir. 1995);  Metcalf &  Eddy, Inc.  v.                                                  _____________________          Puerto Rico  Aqueduct and Sewer Auth., 991 F.2d 935, 939 n.3 (1st          _____________________________________          Cir. 1993).                                           -22-                                         -22-                      While we have acknowledged that  there are exceptions          to the  law of  the case  doctrine, we have  emphasized that  the          circumstances in which they apply are  rare.  As have a number of          other circuits, we have determined that issues decided on  appeal          should  not be  reopened "'unless  the evidence  on a  subsequent          trial  was  substantially  different, controlling  authority  has          since  made a contrary decision of law applicable to such issues,          or the decision was  clearly erroneous and would work  a manifest          injustice.'"  Rivera-Martinez, 931  F.2d at 151 (quoting White v.                        _______________                            _____          Murtha,  377  F.2d 428,  432  (5th Cir.  1967))  (other citations          ______          omitted).                        Brown's  argument  that  the Supreme  Court's  recent          decision in Adarand Constr., Inc.  v. Pena, --- U.S. ---,  115 S.                      _____________________     ____          Ct.  2097  (1995)  ("Adarand"), controls  this  case  necessarily                               _______          presumes that Adarand constitutes a contrary intervening decision                        _______          by  controlling  authority  on  point  that  (i)  undermines  the          validity of Cohen II; (ii)  compels us to depart from the  law of                      ________          the case doctrine; and (iii) therefore mandates that we reexamine          Brown's equal protection claim.                        We   have   narrowly   confined    the   "intervening          controlling authority  exception" to  Supreme Court  opinions, en                                                                         __          banc opinions  of this court, or statutory  overrulings.  Irving,          ____                                                      ______          49 F.3d  at 834.  We have also recognized that this exception may          apply "in  those rare situations where  newly emergent authority,          although   not  directly   controlling,  nevertheless   offers  a                                         -23-                                         -23-          convincing reason for believing that the  earlier panel, in light          of  the neoteric  developments, would  change  its course."   Id.                                                                        ___          (internal quotation marks and citation omitted).                      The  law of the case doctrine is a prudential rule of          policy   and  practice,   rather   than  "an   absolute  bar   to          reconsideration []or  a limitation  on a federal  court's power."          Rivera-Martinez, 931 F.2d at 150-51.  Thus, we have not construed          _______________          the  doctrine  as  "an  inflexible straitjacket  that  invariably          requires  rigid  compliance."    Northeast Utils.  Serv.  Co.  v.                                           ____________________________          Federal  Energy  Regulatory Comm'n,  55 F.3d  686, 688  (1st Cir.          __________________________________          1995).   Nevertheless,  the doctrine  serves important  goals and          must be "treated respectfully and,  in the absence of exceptional          circumstances, applied according to its tenor."  Rivera-Martinez,                                                           _______________          931  F.2d at  151.   Accordingly, we  have held  that only  a few          exceptional circumstances can  overcome the  interests served  by          adherence  to  the doctrine  and  these  exceptions are  narrowly          circumscribed.    See  id.;  see also  United  States  v. Reveron                            ___  ___   ___ ____  ______________     _______          Martinez,  836 F.2d 684,  687 n.2 (1st  Cir. 1988) ("To  be sure,          ________          there may be occasions  when courts can --  and should --  loosen          the iron grip of stare decisis.  But  any such departure 'demands                           _____ _______          special justification.'")  (quoting Arizona  v. Rumsey,  467 U.S.                                              _______     ______          203, 212 (1984)).9                                               ____________________            9.  The law of the case doctrine is "akin to the doctrines of            collateral estoppel,  res judicata, and stare decisis,"  Joan            __________ ________   ___ ________      _____ _______            Steinman, Law Of The Case: A Judicial Puzzle  In Consolidated                      _______________  __________________________________            And Transferred Cases And In MultiDistrict Litigation, 135 U.            _____________________________________________________            Penn.  L. Rev.  595, 598-99  (1987) (footnotes  omitted), and                                         -24-                                         -24-                      For  the reasons  that  follow, we  conclude that  no          exception  to  the law  of the  case  doctrine applies  here and,          therefore, that Cohen II's rulings of law control the disposition                          ________          of this appeal.                      Brown contends that stare  decisis does not bind this                                          _____  _______          panel  "to the previous preliminary ruling  of this Court because          it lacks the element of finality," Reply Br. at 24,  and that the          law of the case  doctrine does not prevent a court from "changing          its mind," id. at n.47.                     ___                      We  acknowledge  that we  have  repeatedly emphasized          that  conclusions and  holdings  regarding the  merits of  issues          presented  on appeal from a grant of a preliminary injunction are          to  be understood as statements  as to probable  outcomes.  E.g.,                                                                      ____          A.M. Capen's Co. v. American Trading  and Prod. Co., 74 F.3d 317,          ________________    _______________________________          322  (1st Cir. 1996); Narragansett Indian  Tribe v. Guilbert, 934                                __________________________    ________          F.2d 4,  6 (1st  Cir. 1991).   The concern informing  this caveat          arises when we are asked  to rule on the propriety of  a district          court's grant of a  preliminary injunction (or otherwise issue  a          preliminary ruling) without benefit of full  argument and a well-                                            ____________________            "has been said to lie half  way between stare decisis and res                                                    _____ _______     ___            judicata,"  1B Moore  at    0.404[1] n.3  (internal quotation            ________            marks  and citation  omitted).   As  applied  in the  federal            courts today,  the  law of  the  case doctrine  more  closely            resembles  the  doctrine of  stare decisis.    1B Moore  at                                           _____ _______            0.404[1].   Both  doctrines reflect  concerns that  have long            been recognized as fundamentally important to the rule of law            -- e.g., stability, predictability, and respect  for judicial            authority --  and both doctrines  are applied  "with more  or            less rigidity depending on which interest is served."  Id. at                                                                   ___            II-2.                                         -25-                                         -25-          developed record.  In  this case, however, the record  before the          prior panel  was "sufficiently developed and  the facts necessary          to  shape the  proper  legal matrix  [we]re sufficiently  clear,"          Cohen II, 991 F.2d at 904, and nothing in the record subsequently          ________          developed  at trial constitutes  substantially different evidence          that might undermine the validity of the prior panel's rulings of          law.    In  considering  plaintiffs'  motion  for  a  preliminary          injunction  in Cohen I,  the district court  (i) "paid meticulous                         _______          attention  to the  parties' prospects  for success over  the long          haul;" (ii) "plainly visualized  both the factual intricacies and          legal  complexities that characterize Title IX litigation;" (iii)          "held a lengthy adversary hearing and reviewed voluminous written          submissions;"  and  (iv)  "correctly focused  on  the  three-part          accommodation test."  Cohen II, 991 F.2d at 903.  Further, as the                                ________          district  court noted  in  its opinion  after  the trial  on  the          merits, "[n]othing in  the record before me, now fully developed,          undermines  the considered  legal  framework established  by  the          First Circuit at the  preliminary injunction stage."  Cohen  III,                                                                __________          879 F. Supp. at 194.                       Brown offers remarkably little in the way of analysis          or authority to support its blithe contention that we are free to          disregard  Cohen II in disposing  of this appeal.   Indeed, Brown                     ________          argues  as if  the  prior  panel  had  not  decided  the  precise          statutory  interpretation questions  presented (which  it clearly          did)  and  as if  the  district court's  liability  analysis were                                         -26-                                         -26-          contrary  to the law enunciated in  Cohen II (which it clearly is                                              ________          not).   Finding Brown's  bare assertions to  be unpersuasive,  we          decline the invitation  to this court to "change its  mind."  The          precedent  established   by  the  prior  panel   is  not  clearly          erroneous; it  is  the law  of  this case  and  the law  of  this          circuit.                                          IV.                                         IV.                      Brown  contends that the  district court misconstrued          and misapplied  the three-part test.   Specifically, Brown argues          that the  district court's interpretation and  application of the          test  is irreconcilable with the statute, the regulation, and the          agency's interpretation of the law, and effectively renders Title          IX  an "affirmative  action statute"  that mandates  preferential          treatment  for women  by  imposing quotas  in  excess of  women's          relative interests and abilities in athletics.  Brown asserts, in          the alternative,  that if  the district court  properly construed          the test, then the  test itself violates Title IX and  the United          States Constitution.                      We  emphasize  two  points  at the  outset.    First,          notwithstanding Brown's persistent invocation of the inflammatory          terms "affirmative  action," "preference,"  and "quota,"  this is          not an affirmative action case.  Second, Brown's efforts to evade          the controlling authority of Cohen II by recasting its core legal                                       ________          arguments as challenges to the "district court's  interpretation"          of the law are unavailing; the primary arguments raised here have                                         -27-                                         -27-          already  been  litigated and  decided adversely  to Brown  in the          prior appeal.                                            A.                                          A.                      Brown's   talismanic   incantation  of   "affirmative          action" has no  legal application to this case and is not helpful          to Brown's cause.  While "affirmative action" may  have different          connotations  as a matter  of politics, as  a matter of  law, its          meaning  is more  circumscribed.   True affirmative  action cases          have  historically involved a  voluntary10 undertaking  to remedy          discrimination  (as in  a program  implemented by  a governmental          body,  or  by a  private employer  or  institution), by  means of          specific  group-based  preferences  or  numerical  goals,  and  a          specific timetable  for achieving those goals.   See Adarand, ---                                                           ___ _______          U.S.  ---, 115  S. Ct.  2097 (1995)  (remanding for  review under          strict  scrutiny a challenge to a  federal statute establishing a          government-wide goal for awarding to minority businesses not less          than  5%  of  the   total  value  of  all  prime   contracts  and          subcontracts for  each fiscal  year); Metro Broadcasting  v. FCC,                                                __________________     ___                                            ____________________            10.  Cases and  commentators sometimes treat  cases involving            involuntarily  implemented  plans  --  e.g.,   plans  adopted            pursuant  to a  consent  decree or  a  contempt order  --  as            affirmative  action  cases.    See, e.g.,  United  States  v.                                           ___  ____   ______________            Paradise, 480  U.S. 149  (1987) (upholding  a "one-black-for-            ________            one-white"  promotion requirement ordered by a district court            as an interim measure in response to proven discrimination by            a  state employer); Sheet Metal Workers v. EEOC, 478 U.S. 421                                ___________________    ____            (1986)  (upholding a federal  district court's  imposition on            the union a goal  for racial minority membership as  a remedy            for the  union's contempt  of the court's  earlier orders  to            cease racially discriminatory admissions practices).                                          -28-                                         -28-          497 U.S. 547 (1990) (upholding a  federal program requiring race-          based preferences); City of Richmond v. J.A. Croson Co., 488 U.S.                              ________________    _______________          469 (1989) (striking down a municipal set-aside program requiring          that 30% of  the city's  construction dollars be  paid to  racial          minority  subcontractors   on  an   annual  basis);  Johnson   v.                                                               _______          Transportation Agency, 480 U.S. 616 (1986) (upholding a temporary          _____________________          program authorizing a county  agency to consider sex and  race as          factors in making promotions in order to  achieve a statistically          measurable  improvement  in  the  representation  of   women  and          minorities in major  job classifications in  which they had  been          historically underrepresented); Wygant  v. Jackson Bd.  of Educ.,                                          ______     _____________________          476  U.S.  267  (1986)  (striking  down  a  collective-bargaining          faculty  lay-off provision  requiring preferential  treatment for          certain racial minorities); Fullilove  v. Klutznick, 448 U.S. 448                                      _________     _________          (1980)  (upholding a  federal program  requiring state  and local          recipients of federal  public works  grants to set  aside 10%  of          funds  for procuring  goods and  services from  minority business          enterprises); United  Steelworkers v. Weber, 443  U.S. 193 (1979)                        ____________________    _____          (upholding a  collective bargaining agreement that  set aside for          blacks  half the  places  in a  new  training program  until  the          percentage  of blacks  among  skilled workers  at  the plant  was          commensurate  with the  percentage of blacks  in the  local labor          force);  Regents of  the  Univ. of  Cal. v.  Bakke, 438  U.S. 265                   _______________________________     _____          (1978) (striking down a  state medical school's admissions policy          that set aside 16 of its places for racial minorities).                                         -29-                                         -29-                      Title IX is not an affirmative  action statute; it is          an anti-discrimination statute, modeled explicitly  after another          anti-discrimination statute, Title VI.  No aspect of the Title IX          regime at issue  in this case  -- inclusive of  the statute,  the          relevant  regulation,  and  the  pertinent  agency  documents  --          mandates   gender-based  preferences   or  quotas,   or  specific          timetables for implementing numerical goals.                        Like other anti-discrimination statutory schemes, the          Title IX regime permits affirmative action.11  In addition, Title                          _______          IX, like other anti-discrimination schemes, permits an  inference          that   a  significant  gender-based   statistical  disparity  may          indicate the  existence of  discrimination.  Consistent  with the          school   desegregation   cases,  the   question   of  substantial          proportionality under the Policy Interpretation's three-part test                                            ____________________            11.  As previously noted, Title IX itself specifies only that            the statute shall not  be interpreted to require gender-based                                                     _______            preferential or  disparate treatment.   20 U.S.C.    1681(b).            However, although Congress could easily  have done so, it did            not ban affirmative action or gender-conscious remedies under            Title IX.  See also Weber, 443 U.S. at 201-02 (construing the                       ___ ____ _____            prohibition  against  race  discrimination  contained  in                703(a)  and  (d)  of  Title  VII,  and  concluding  that  "an            interpretation  of  the  sections  that   forbade  all  race-            conscious  affirmative   action  would  bring  about  an  end            completely  at variance with  the purpose of  the statute and            must be  rejected") (internal  quotation marks  and citations            omitted); id.  at 205-06 (construing    703(j) of  Title VII,                      ___            upon  which   1681(b) of  Title IX was  based, and concluding            that "[t]he  natural inference is that Congress  chose not to            forbid all voluntary race-conscious affirmative action").                        In   addition,   remedial   action  and   voluntary            affirmative   action  to  overcome   the  effects  of  gender            discrimination are permitted under  the Title IX regulations,            34  C.F.R.   106.3, and by the Policy Interpretation, 44 Fed.            Reg. at 71,416.                                          -30-                                         -30-          is  merely  the  starting point  for  analysis,  rather than  the          conclusion;  a rebuttable presumption,  rather than an inflexible          requirement.   See, e.g.,  Swann v. Charlotte-Mecklenburg  Bd. of                         ___  ____   _____    _____________________________          Educ.,  402 U.S.  1,  25  (1971).    In  short,  the  substantial          _____          proportionality  test  is but  one  aspect  of the  inquiry  into          whether an  institution's athletics  program complies  with Title          IX.                        Also consistent with the school  desegregation cases,          the  substantial proportionality  test  of prong  one is  applied          under the Title IX framework, not mechanically, but case-by-case,          in  a fact-specific  manner.   As with  other anti-discrimination          regimes, Title  IX neither  mandates a finding  of discrimination          based solely upon a gender-based statistical disparity, see Cohen                                                                  ___ _____          II,  991 F.2d  at  895, nor  prohibits gender-conscious  remedial          __          measures.  See Missouri v. Jenkins, --- U.S. ---, ---, 115 S. Ct.                     ___ ________    _______          2038,    2048    (1995)    (acknowledging   the    constitutional          permissibility  of  court-ordered, race-conscious  remedial plans          designed to  restore victims  of discrimination to  the positions          they  would  have  occupied  in  the absence  of  such  conduct);          Fullilove, 448 U.S. at  483 (recognizing that the authority  of a          _________          federal  court to  incorporate  racial criteria  into a  remedial          decree  also  extends to  statutory  violations  and that,  where          federal  anti-discrimination  laws  have  been   violated,  race-          conscious remedies  may be appropriate);  Weber, 443 U.S.  at 197                                                    _____          (holding that Title  VII does not prohibit private employers from                                         -31-                                         -31-          voluntarily  implementing  race-conscious  measures to  eliminate          "manifest  racial  imbalances  in  traditionally  segregated  job          categories");  McDaniel  v.  Barresi,  402  U.S.  39,  41  (1971)                         ________      _______          (recognizing that measures required to remedy race discrimination          "will almost invariably require"  race-conscious classifications,          and that "[a]ny other  approach would freeze the status  quo that          is the very target of all desegregation processes").                         Another  important distinction between  this case and          affirmative  action cases  is  that the  district court's  remedy          requiring  Brown   to  accommodate  fully   and  effectively  the          athletics  interests and abilities of its women students does not          raise the concerns underlying  the Supreme Court's requirement of          a   particularized   factual  predicate   to   justify  voluntary          affirmative  action   plans.    In  reviewing   equal  protection          challenges to such plans, the Court is concerned  that government          bodies are  reaching out  to implement race-  or gender-conscious          remedial measures that are "ageless in their reach into the past,          and  timeless in their ability to affect the future," Wygant, 476                                                                ______          U.S. at  276, on  the basis  of facts  insufficient to support  a          prima  facie case  of  a constitutional  or statutory  violation,          Croson, 488 U.S. at  500, to the benefit of  unidentified victims          ______          of past discrimination, see id. at  469; Wygant, 476 U.S. at 276.                                  ___ ___          ______          Accordingly,  the Court  has  taken the  position that  voluntary          affirmative  action plans  cannot  be constitutionally  justified          absent  a  particularized  factual  predicate  demonstrating  the                                         -32-                                         -32-          existence of "identified discrimination," see Croson, 488 U.S. at                                                    ___ ______          500-06, because "[s]ocietal discrimination, without more,  is too          amorphous  a basis  for imposing  a racially  classified remedy,"          Wygant, 476 U.S. at 276.              ______                      From a  constitutional standpoint, the case before us          is  altogether  different.   Here,  gender-conscious  relief  was          ordered by  an Article  III court, constitutionally  compelled to          have  before it  litigants with  standing to  raise the  cause of          action alleged; for the  purpose of providing relief upon  a duly          adjudicated   determination   that   specific    defendants   had          discriminated  against a certified class of women in violation of          a  federal anti-discrimination  statute; based  upon  findings of          fact  that were  subject to the  Federal Rules of  Evidence.  The          factual problem  presented in affirmative action  cases is, "Does          the evidence support a finding of discrimination such  that race-          or gender-conscious remedial measures  are appropriate?"  We find          these  multiple  indicia of  reliability  and  specificity to  be          sufficient to answer that question in the affirmative.                      From  the  mere fact  that  a remedy  flowing  from a          judicial determination of discrimination is  gender-conscious, it          does not follow that the remedy constitutes "affirmative action."          Nor  does a  "reverse discrimination" claim  arise every  time an          anti-discrimination statute  is  enforced.   While  some  gender-          conscious relief may adversely  impact one gender -- a  fact that          has not  been demonstrated in this  case -- that alone  would not                                         -33-                                         -33-          make the relief "affirmative  action" or the consequence  of that          relief  "reverse discrimination."    To the  contrary, race-  and          gender-conscious    remedies    are    both    appropriate    and          constitutionally permissible under a  federal anti-discrimination          regime,  although such  remedial  measures are  still subject  to          equal protection review.  See Miller v. Johnson, --- U.S. ---, --                                    ___ ______    _______          -,  115  S. Ct.  2475,  2491  (1995)  ("compliance  with  federal          antidiscrimination  laws  cannot  justify race-based  districting          where the challenged district  was not reasonably necessary under          a constitutional reading and  application of those laws") (citing          Shaw v. Reno, 509 U.S. 630, 653-54 (1993)).          ____    ____                                          B.                                          B.                      Cohen  II squarely rejected Brown's interpretation of                      _________          the three-part  test and carefully  delineated its own,  which is          now the law of this circuit as well as the law of this case.   On          remand,  the district court's  liability analysis  explicitly and          faithfully adhered to Cohen II's mandate, and  we are bound to do                                ________          the  same at  this stage  of  the litigation,  absent one  of the          exceptional circumstances discussed supra.   Because the  precise                                              _____          questions presented  regarding the  proper interpretation  of the          Title IX framework were considered and decided by a panel of this          court in the prior appeal, and because no exception to the law of          the case doctrine is presented, we have no occasion to reopen the          issue here.   Brown's rehashed statutory  challenge is foreclosed          by the law of the case doctrine and we are therefore bound by the                                         -34-                                         -34-          prior panel's interpretation of  the statute, the regulation, and          the relevant agency pronouncements.                      In  its   liability  analysis,  the   district  court          expressly accepted Cohen II's  elucidation of the applicable law,                             ________          Cohen III, 879 F. Supp. at 194, and applied the law in accordance          _________          with its mandate, id. at 210-13.   Indeed, every circuit court to                            ___          have reviewed  a Title  IX claim  of discrimination in  athletics          since  Cohen II was decided is in  accord with its explication of                 ________          the Title  IX regime as it  applies to athletics.   See Horner v.                                                              ___ ______          Kentucky  High Sch. Athletics Ass'n, 43 F.3d 265 (6th Cir. 1994);          ___________________________________          Kelley v. Board  of Trustees, 35 F.3d 265 (7th  Cir. 1994), cert.          ______    __________________                                _____          denied, ---  U.S. ---, 115  S. Ct. 938  (1995); Favia  v. Indiana          ______                                          _____     _______          Univ. of  Pa., 7  F.3d 332  (3d Cir. 1993);  Roberts v.  Colorado          _____________                                _______     ________          State Bd. of Agric., 998 F.2d  824 (10th Cir.), cert. denied, 510          ___________________                             _____ ______          U.S. 1004 (1993).                       Cohen  II  held  that  the  Policy Interpretation  is                      _________          entitled  to substantial  deference because  it is  the enforcing          agency's "considered interpretation of the regulation."  991 F.2d          at  896-97.    Brown argues  that  the  district  court erred  in          concluding that it was obligated to give substantial deference to          the Policy Interpretation, on the ground that "the interpretation          is  not a  worthy  candidate for  deference,"  Reply Br.  at  15,          because  "the urged interpretation  is illogical,  conflicts with          the  Constitution,  the  Statute,  the  Regulation,  other Agency          materials and  practices,  existing  analogous  caselaw  and,  in                                         -35-                                         -35-          addition, is bad  policy," id.   We  reject Brown's  kitchen-sink                                     ___          characterization  of the Policy  Interpretation and its challenge          to  the  substantial  deference  accorded that  document  by  the          district court.                       The Policy Interpretation represents  the responsible          agency's   interpretation   of   the  intercollegiate   athletics          provisions of Title IX and its implementing regulations.  44 Fed.          Reg.  at  71,413.   It  is  well  settled that,  where,  as here,          Congress  has  expressly  delegated to  an  agency  the  power to          "elucidate a specific provision of a  statute by regulation," the          resulting  regulations  should  be  accorded  "controlling weight          unless they are arbitrary,  capricious, or manifestly contrary to          the statute."   Chevron U.S.A. Inc. v.  Natural Resources Defense                          ___________________     _________________________          Council,  Inc., 467  U.S.  837,  844 (1984).    It  is also  well          ______________          established   "'that   an  agency's   construction  of   its  own          regulations is  entitled to  substantial deference.'"   Martin v.                                                                  ______          Occupational Safety and Health Review  Comm'n, 499 U.S. 144,  150          _____________________________________________          (1991) (quoting Lyng v.  Payne, 476 U.S. 926, 939  (1986)) (other                          ____     _____          citation  omitted).     As  the  Supreme   Court  has  explained,          "[b]ecause applying an agency's regulation to complex or changing          circumstances  calls  upon  the  agency's  unique  expertise  and          policymaking    prerogatives,   we   presume   that   the   power          authoritatively to  interpret its own regulations  is a component          of the agency's delegated lawmaking powers."  Martin, 499 U.S. at                                                        ______          151 (citation omitted).                                          -36-                                         -36-                      Applying  these  principles, Cohen  II held  that the                                                   _________          applicable  regulation, 34 C.F.R.    106.41, deserves controlling          weight, 991 F.2d at 895;  that the Policy Interpretation warrants          substantial deference,  id. at  896-97; and that,  "[b]ecause the                                  ___          agency's rendition  stands upon  a plausible, if  not inevitable,          reading of Title IX,  we are obligated to enforce  the regulation          according  to its tenor," id. at 899 (citations omitted).  Accord                                    ___                              ______          Horner,  43 F.3d  at 274-75;  Kelley, 35  F.3d at  270;  Favia v.          ______                        ______                     _____          Indiana Univ. of Pa., 812 F.  Supp. 578, 584 (W.D. Pa.), aff'd, 7          ____________________                                     _____          F.3d  332 (3d Cir. 1993).  On remand, the district court properly          applied the legal framework elucidated in Cohen II and explicitly                                                    ________          followed this court's mandate  in according controlling weight to          the   regulation  and   substantial  deference   to  the   Policy          Interpretation.    Cohen III,  879  F.  Supp. at  197-99;  accord                             _________                               ______          Kelley,  35 F.3d at 272 (holding that "neither the regulation nor          ______          the  policy interpretation  run afoul  of the  dictates  of Title          IX").   We hold that the district court did not err in the degree          of deference it accorded  the regulation and the relevant  agency          pronouncements.                                          C.                                          C.                      As previously  noted, the  district court  held that,          for  purposes  of   the  three-part  test,  the   intercollegiate          athletics  participation opportunities offered  by an institution          are  properly   measured  by   counting  the  number   of  actual          participants  on intercollegiate teams.   Cohen III, 879 F. Supp.                                                    _________                                         -37-                                         -37-          at 202.  The Policy Interpretation  was designed specifically for          intercollegiate athletics.12 44 Fed. Reg. at 71,413.  Because the          athletics  regulation  distinguishes   between  club  sports  and          intercollegiate  sports, under  the Policy  Interpretation, "club          teams will not  be considered to be  intercollegiate teams except          in those  instances where  they regularly participate  in varsity          competition."    Id. at  n.1.   Accordingly,  the  district court                           ___          excluded   club   varsity   teams   from    the   definition   of          "intercollegiate  teams" and, therefore,  from the calculation of          participation  opportunities, because the evidence was inadequate          to show  that the  club teams regularly  participated in  varsity          competition.  Cohen III, 879 F. Supp. at 200.                          _________                      The   district   court's   definition  of   athletics          participation  opportunities  comports  with  the   agency's  own          definition.   See Clarification Memorandum at  2 ("In determining                        ___          participation opportunities,  OCR  counts the  number  of  actual          athletes  participating in the  athletic program.").   We find no          error in the district  court's definition and calculation of  the          intercollegiate athletics participation opportunities afforded to          Brown students, and no error  in the court's finding of a  13.01%          disparity  between  the  percentage  of  women  participating  in                                            ____________________            12.  Application of the Policy Interpretation  is not limited            to   intercollegiate   athletics,   however.      The  Policy            Interpretation states that "its general principles will often            apply  to  club,  intramural,  and  interscholastic  athletic            programs, which are also covered by the regulation."  44 Fed.            Reg. at 71,413.                                         -38-                                         -38-          intercollegiate varsity athletics at  Brown and the percentage of          women in Brown's undergraduate student body.                                             D.                                          D.                      Brown  contends that  an  athletics  program  equally          accommodates  both  genders and  complies  with  Title IX  if  it          accommodates the relative interests and abilities of its male and                           ________          female students.  This  "relative interests" approach posits that          an  institution satisfies prong  three of the  three-part test by          meeting  the  interests  and  abilities  of the  underrepresented          gender  only  to  the extent  that  it  meets  the interests  and          abilities of  the overrepresented  gender.13  See  Cohen II,  991                                                        ___  ________          F.2d at 899.                       Brown  maintains that  the district  court's decision          imposes   upon  universities   the   obligation   to  engage   in          preferential treatment for women by requiring quotas in excess of          women's relative interests  and abilities.  With respect to prong          three, Brown asserts that  the district court's interpretation of          the word  "fully" "requires  universities to favor  women's teams          and treat  them better than men's  [teams]. . . .  forces them to                                            ____________________            13.  We  note  that  Brown  presses  its  relative  interests            argument under both  prong one  and prong three.   At  trial,            Brown  argued  that,  "in  order  to  succeed on  prong  one,            plaintiffs bear the burden of proving that the percentage  of            women   among   varsity   athletes   is   not   substantially            proportionate  to the  percentage  of  women  among  students                                                                 ________            interested in  participating  in varsity  athletics."   Cohen            __________ __  _____________  __ _______  _________     _____            III,  879 F.  Supp. at  205.   At the  preliminary injunction            ___            stage, Brown propounded the same relative interests  argument            under prong three.  Id. at n.41.                                 ___                                         -39-                                         -39-          eliminate or cap men's teams.  . . . [and] forces universities to          impose  athletic  quotas  in  excess of  relative  interests  and          abilities."  Appellant's Br. at 55.                      The  prior  panel  considered  and  rejected  Brown's          approach,  observing that "Brown reads the 'full' out of the duty          to accommodate 'fully and  effectively.'"  Cohen II, 991  F.2d at                                                     ________          899.   Under Cohen  II's controlling interpretation,  prong three                       _________          "demands not  merely some  accommodation, but full  and effective          accommodation.  If there is sufficient interest and ability among          members of the statistically underrepresented gender, not  slaked          by existing programs, an institution necessarily fails this prong          of the test."  Id. at 898.                           ___                      Brown's   interpretation   of   full  and   effective          accommodation is "simply  not the law."  Cohen III,  879 F. Supp.                                                   _________          at 208.   We agree  with the prior  panel and the  district court          that   Brown's  relative  interests  approach  "cannot  withstand          scrutiny on either legal  or policy grounds," Cohen II,  991 F.2d                                                        ________          at  900,  because  it  "disadvantages women  and  undermines  the          remedial  purposes  of  Title  IX by  limiting  required  program          expansion for the underrepresented sex to the status quo level of          relative interests," Cohen III, 879 F. Supp. at 209.  After Cohen                               _________                              _____          II, it cannot be maintained that the relative interests  approach          __          is compatible with Title IX's equal accommodation principle as it          has been interpreted by this circuit.                                         -40-                                         -40-                      Brown argues that the district court's interpretation          of  the three-part test  requires numerical proportionality, thus                                   ________          imposing  a gender-based  quota  scheme in  contravention of  the          statute.  This argument  rests, in part, upon Brown's  reading of          20  U.S.C.     1681(b)  as  a  categorical  proscription  against          consideration of gender parity.  Section 1681(b) provides:                      Nothing  contained  in subsection  (a) of                      this  section  shall  be  interpreted  to                      require  any  educational institution  to                      grant preferential or disparate treatment                      to the  members of one sex  on account of                      an imbalance which may exist with respect                      to  the total  number  or  percentage  of                      persons  of that  sex participating in or                      receiving the benefits  of any  federally                      supported   program   or   activity,   in                      comparison  with  the  total   number  or                      percentage of persons of that sex  in any                                                         ______                      community, State, section or other area .                      _______________________________________                      . . .          20 U.S.C.A.   1681(b) (West 1990) (emphasis added).                      The prior panel, like Brown, assumed without analysis          that   1681(b) applies unequivocally to intercollegiate athletics          programs.    We  do not  question  Cohen  II's  application of                                                _________          1681(b).   We  think it important  to bear in  mind, however, the          congressional  concerns that inform  the proper interpretation of          this  provision.  Section 1681(b) was patterned after   703(j) of          Title VII, 42 U.S.C.   2000e-2(j), and  was specifically designed          to  prohibit quotas  in university  admissions and  hiring, based          upon  the  percentage   of  individuals  of   one  gender  in   a          geographical  community.  See H.R.  Rep. No. 554,  92d Cong., 1st                                    ___          Sess.  (1971),  reprinted  in  1972  U.S.C.C.A.N.  2462,  2590-92                          _________  __                                         -41-                                         -41-          (Additional Views);  117 Cong. Rec. 39,261-62  (1971) (remarks of          Rep. Quie); 117 Cong. Rec. 30,406, 30,409 (remarks of Sen. Bayh);          117 Cong. Rec. 39,251-52  (remarks of Rep. Mink and  Rep. Green).          Thus,  the  legislative   history  strongly  suggests   that  the          underscored language defines what  is proscribed (in the contexts          of admissions and hiring) in terms of a geographical area, beyond                                                                     ______          the  institution, and does not  refer to an  imbalance within the          ___  ___________                                       ______ ___          university, with respect to the representation of  each gender in          __________          intercollegiate athletics,  as compared  to the gender  makeup of          the student body.                        In  any event, the  three-part test is,  on its face,          entirely  consistent with    1681(b)  because the  test does  not          require preferential  or disparate  treatment for  either gender.          _______          Neither  the Policy  Interpretation's  three-part  test, nor  the          district  court's  interpretation  of  it,  mandates  statistical                                                      ________          balancing; "[r]ather, the policy interpretation merely  creates a          presumption that a school is in compliance  with Title IX and the          applicable   regulation  when  it  achieves  such  a  statistical          balance."  Kelley, 35 F.3d at 271.                      ______                      The test  is also entirely consistent  with   1681(b)          as applied  by the  prior panel  and by the  district court.   As          previously noted, Cohen II expressly held that "a court assessing                            ________          Title IX compliance may not find a violation solely because there                                                       ______          is  a disparity between the gender  composition of an educational          institution's  student constituency,  on  the one  hand, and  its                                         -42-                                         -42-          athletic programs, on  the other hand."   991 F.2d  at 895.   The          panel  then  carefully  delineated  the burden  of  proof,  which          requires  a  Title IX  plaintiff  to  show, not  only  "disparity          between the gender composition  of the institution's student body          and  its  athletic program,  thereby  proving  that there  is  an          underrepresented gender,"  id. at 901,  but also  "that a  second                                     ___          element -- unmet interest  -- is present," id., meaning  that the                                                     ___          underrepresented  gender  has  not  been  fully  and  effectively          accommodated  by the institution's  present athletic program, id.                                                                        ___          at 902 (citing 44 Fed. Reg. at 71,418).  Only where the plaintiff          meets the burden of  proof on these elements and  the institution                                                       ___          fails  to show as an affirmative defense a history and continuing          practice  of program  expansion responsive  to the  interests and          abilities  of  the  underrepresented  gender  will  liability  be          established.  Surely this is a far cry from a one-step imposition          of a gender-based quota.                        Brown simply ignores the fact that it  is required to          accommodate  fully   the   interests   and   abilities   of   the          underrepresented gender, not because the three-part test mandates          preferential treatment for women ab initio, but because Brown has                                           __ ______          been  found (under  prong one)  to have  allocated its  athletics          participation opportunities so as to create a significant gender-          based  disparity with  respect  to these  opportunities, and  has          failed  (under  prong  two)  to  show  a  history and  continuing          practice of expansion  of opportunities for  the underrepresented                                         -43-                                         -43-          gender.   Brown's interpretation  conflates prongs one  and three          and distorts the three-part  test by reducing it to  an abstract,          mechanical determination of strict numerical proportionality.  In          short,  Brown treats the three-part test for compliance as a one-          part test for strict liability.                       Brown  also  fails  to   recognize  that  Title  IX's          remedial  focus is,  quite properly,  not on  the overrepresented          gender, but on the underrepresented gender; in  this case, women.          Title IX and its  implementing regulations protect the class  for          whose special benefit the  statute was enacted.  See  Cannon, 441                                                           ___  ______          U.S. at 694.   It is women and not men  who have historically and          who continue to be underrepresented in sports, not only at Brown,          but  at universities nationwide.  See Williams v. School Dist. of                                            ___ ________    _______________          Bethlehem,  Pa.,  998  F.2d  168,  175  (1993)  (observing  that,          _______________          although Title IX and  its regulations apply equally to  boys and          girls,  "it would require blinders  to ignore that the motivation          for promulgation of the regulation on athletics  was the historic          emphasis on  boys' athletic programs  to the exclusion  of girls'          athletic programs in  high schools as  well as colleges"),  cert.                                                                      _____          denied, 510 U.S. 1043 (1994).           ______                      The  prior  panel  held  that "[t]he  fact  that  the          overrepresented gender is less  than fully accommodated will not,          in  and of  itself,  excuse  a  shortfall  in  the  provision  of          opportunities for  the underrepresented  gender."  Cohen  II, 991                                                             _________          F.2d   at  899.    Instead,  the  law  requires  that,  absent  a                                         -44-                                         -44-          demonstration   of   continuing   program   expansion   for   the          underrepresented gender  under prong two of  the three-part test,          an  institution must  either  provide athletics  opportunities in          proportion to the gender composition of the student body so as to          satisfy  prong  one,  or  fully  accommodate  the  interests  and          abilities of athletes of  the underrepresented gender under prong          three.  Id.  In other words,                  ___                      If  a  school,  like  Brown,  eschews the                      first two benchmarks of the accommodation                      test, electing to stray  from substantial                      proportionality  and   failing  to  march                      uninterruptedly in the direction of equal                      athletic opportunity, it must comply with                      the third  benchmark.    To  do  so,  the                      school   must   fully   and   effectively                      accommodate the underrepresented gender's                      interests  and  abilities,  even if  that                      requires it to give  the underrepresented                      gender (in this case, women) what amounts                      to   a  larger   slice  of   a  shrinking                      athletic-opportunity pie.          Id. at 906.          ___                      We think it clear that neither the Title IX framework          nor the district court's interpretation of it mandates a  gender-          based  quota scheme.    In  our  view,  it  is  Brown's  relative          interests  approach  to  the  three-part test,  rather  than  the          district  court's interpretation,  that contravenes  the language          and purpose of the test and of  the statute itself.  To adopt the          relative interests  approach would be, not only to overrule Cohen                                                                      _____          II, but to rewrite  the enforcing agency's interpretation  of its          __          own  regulation  so  as  to  incorporate  an  entirely  different          standard  for  Title  IX  compliance.   This  relative  interests                                         -45-                                         -45-          standard would entrench  and fix by  law the significant  gender-          based disparity in athletics  opportunities found by the district          court to exist at Brown, a finding we have held to be not clearly          erroneous.      According    to   Brown's   relative    interests          interpretation of  the equal accommodation principle, the gender-          based disparity in athletics participation opportunities at Brown          is due to a lack  of interest on the part of its female students,          rather than  to  discrimination, and  any attempt  to remedy  the          disparity is, by definition, an unlawful quota.  This approach is          entirely contrary to "Congress's unmistakably clear mandate  that          educational institutions  not use  federal  monies to  perpetuate          gender-based discrimination," id. at  907, and makes it virtually                                        ___          impossible  to  effectuate  Congress's intent  to  eliminate  sex          discrimination in intercollegiate athletics.                                          E.                                          E.                      Brown  also  claims  error  in  the district  court's          failure to apply Title  VII standards to its analysis  of whether          Brown's intercollegiate athletics program complies with Title IX.          The  district  court rejected  the analogy  to Title  VII, noting          that, while Title VII  "seeks to determine whether gender-neutral          job openings have  been filled without regard  to gender[,] Title          IX  . . . was designed to  address the reality that sports teams,          unlike  the  vast  majority  of jobs,  do  have  official  gender                                                 __          requirements, and this statute accordingly approaches the concept                                         -46-                                         -46-          of discrimination differently from Title VII."  Cohen III, 879 F.                                                          _________          Supp. at 205.                        It does not follow  from the fact that    1681(b) was          patterned after a  Title VII provision  that Title VII  standards          should   be  applied  to  a  Title  IX  analysis  of  whether  an          intercollegiate  athletics  program  equally   accommodates  both          genders,  as Brown contends.   While this court  has approved the          importation  of Title VII  standards into  Title IX  analysis, we          have explicitly limited the  crossover to the employment context.          See  Cohen II, 991 F.2d  at 902 (citing  Lipsett v. University of          ___  ________                            _______    _____________          P.R., 864 F.2d 881, 897  (1st Cir. 1988)); but see Brown  v. Hot,          ____                                       ___ ___ _____     ____          Sexy and  Safer Prods., Inc.,  68 F.3d 525,  540 (1st  Cir. 1995)          ____________________________          (Title VII sexual harassment standards applied to Title IX sexual          harassment  case in  non-employment context),  cert. denied,  ---                                                         _____ ______          U.S. ---, 116 S. Ct. 1044 (1996).                        As Cohen  II recognized, "[t]he scope  and purpose of                         _________          Title   IX,  which   merely   conditions  government   grants  to          educational institutions, are  substantially different from those          of Title VII, which  sets basic employment standards."   991 F.2d          at 902  (citation  omitted).   "[W]hereas  Title VII  is  largely          peremptory,"  Title IX  is  "largely aspirational,"  and thus,  a          "loosely laced buskin."   Id.; see also North Haven,  456 U.S. at                                    ___  ___ ____ ___________          521  (directing that Title IX must  be accorded "a sweep as broad          as its language").                                           -47-                                         -47-                      It is imperative to recognize that athletics presents          a  distinctly different situation  from admissions and employment          and  requires a  different  analysis in  order  to determine  the          existence vel non of  discrimination.  While the Title  IX regime                    ___ ___          permits institutions to maintain gender-segregated teams, the law          _______          does  not require  that  student-athletes attending  institutions          receiving federal funds must  compete on gender-segregated teams;          nor  does the  law require  that institutions  provide completely          gender-integrated athletics programs.14  To the extent that Title          IX allows  institutions to maintain single-sex  teams and gender-                                            ____________________            14.  See  34 C.F.R.    106.41(b)  (1995) ("[A]  recipient may                 ___                                                  ___            operate or  sponsor separate  teams for  members of  each sex            where  selection for  such  teams is  based upon  competitive            skill  or  the  activity   involved  is  a  contact  sport.")            (emphasis   added).     Nor   do   the  regulations   require                                                                  _______            institutions to field gender-integrated teams:                                     However,  where  a recipient  operates or                      sponsors a team in a particular sport for                      members   of  one  sex  but  operates  or                      sponsors no such team for members  of the                      other sex, and athletic opportunities for                      members  of that sex have previously been                      limited, members of the excluded sex must                      be  allowed  to  try-out  for   the  team                      offered  unless the  sport involved  is a                      contact sport.            Id.             ___                      Whether  or not  the institution  maintains gender-            segregated teams, it  must provide "gender-blind  equality of            opportunity to its student body."  Cohen II, 991 F.2d at 896.                                               ________            While this case presents  only the example of members  of the            underrepresented   gender   seeking   the    opportunity   to            participate  on single-sex  teams,  the  same analysis  would            apply  where members  of  the underrepresented  gender sought            opportunities to play on co-ed teams.                                         -48-                                         -48-          segregated  athletics  programs, men  and  women  do not  compete          against  each other for places on team rosters.  Accordingly, and          notwithstanding Brown's protestations to the contrary, the  Title          VII concept  of the "qualified pool"  has no place in  a Title IX          analysis  of equal  opportunities  for male  and female  athletes          because women  are not "qualified"  to compete  for positions  on          men's  teams,  and vice-versa.    In  addition,  the  concept  of          "preference"  does not have the  same meaning, or  raise the same          equality concerns,  as it does  in the employment  and admissions          contexts.                      Brown's approach  fails  to recognize  that,  because          gender-segregated teams are the norm in intercollegiate athletics          programs,  athletics differs  from admissions  and employment  in          analytically material  ways.  In providing  for gender-segregated          teams,  intercollegiate  athletics programs  necessarily allocate                                                       ___________          opportunities separately for male and female students, and, thus,          any  inquiry into a  claim of gender  discrimination must compare                                                               ____          the athletics participation  opportunities provided for  men with          those  provided  for  women.    For   this  reason,  and  because          recruitment  of interested athletes  is at the  discretion of the          institution, there  is a risk  that the institution  will recruit          only enough women  to fill  positions in a  program that  already          underrepresents women, and  that the smaller size  of the women's          program   will   have   the   effect   of   discouraging  women's          participation.                                          -49-                                         -49-                      In this  unique context, Title IX  operates to ensure          that the gender-segregated allocation of  athletics opportunities          does  not disadvantage either gender.  Rather than create a quota          or  preference,  this  unavoidably   gender-conscious  comparison          merely  provides for  the allocation  of athletics  resources and          participation  opportunities   between  the   sexes  in   a  non-          discriminatory  manner.     As  the  Seventh   Circuit  observed,          "Congress itself  recognized  that addressing  discrimination  in          athletics  presented a unique set of problems not raised in areas          such  as employment  and  academics."   Kelley,  35 F.3d  at  270                                                  ______          (citing  Sex  Discrimination  Regulations,  Hearings  Before  the                   ________________________________________________________          Subcommittee  on Post  Secondary  Education of  the Committee  on          _________________________________________________________________          Education and Labor, 94th Cong.,  1st Sess. at 46, 54,  125, 129,          ___________________          152, 177, 299-300  (1975); 118 Cong. Rec.  5807 (1972) (statement          of Sen. Bayh); 117 Cong. Rec. 30,407 (1971) (same)).                      In   contrast  to   the  employment   and  admissions          contexts, in the athletics context,  gender is not an  irrelevant          characteristic.   Courts and institutions  must have some  way of          determining whether  an institution complies with  the mandate of          Title  IX  and  its   supporting  regulations  to  provide  equal          athletics opportunities  for both genders, despite  the fact that          the  institution  maintains single-sex  teams,  and  some way  of          fashioning  a remedy  upon a  determination that  the institution          does not  equally and  effectively accommodate the  interests and          abilities of both  genders.  As the Kelley Court  pointed out (in                                              ______                                         -50-                                         -50-          the context of analyzing the deference due the relevant athletics          regulation and the Policy Interpretation):                      Undoubtedly  the  agency responsible  for                      enforcement  of  the  statute could  have                      required  schools  to  sponsor a  women's                      program for every  men's program  offered                      and  vice  versa.  .   .  .  It  was  not                      unreasonable, however, for the  agency to                      reject this course  of action.  Requiring                      parallel  teams is a  rigid approach that                      denies schools the flexibility to respond                      to  the  differing athletic  interests of                      men   and  women.     It   was  perfectly                      acceptable, therefore, for the  agency to                      chart  a different  course  and adopt  an                      enforcement    scheme    that    measures                      compliance  by analyzing how a school has                      allocated its various athletic resources.          Kelley, 35 F.3d at 271 (footnotes omitted).          ______                      Each prong of the Policy  Interpretation's three-part          test determines compliance in this manner.                      Measuring    compliance    through     an                      evaluation  of  a school's  allocation of                      its  athletic  resources  allows  schools                      flexibility   in  meeting   the  athletic                      interests of their students and increases                      the  chance that the  actual interests of                      those  students  will  be met.    And  if                      compliance  with   Title  IX  is   to  be                      measured through this  sort of  analysis,                      it  is only  practical  that  schools  be                      given  some clear  way to  establish that                      they have satisfied  the requirements  of                      the    statute.        The    substantial                      proportionality contained  in Benchmark 1                      merely establishes such a safe harbor.            Id. (citations omitted).          ___                      We find no error  in the district court's  refusal to          apply Title  VII standards  in its inquiry  into whether  Brown's          intercollegiate athletics  program complies  with Title IX.   See                                                                        ___                                         -51-                                         -51-          Cohen  II, 991  F.2d at 901  ("[T]here is  no need  to search for          _________          analogies where,  as  in the  Title  IX milieu,  the  controlling          statutes  and regulations  are clear.").   We  conclude that  the          district  court's application  of  the three-part  test does  not          create a gender-based quota  and is consistent with Title  IX, 34          C.F.R.    106.41, the Policy  Interpretation, and the  mandate of          Cohen II.           ________                                          F.                                          F.                      Brown has  contended throughout this  litigation that          the significant disparity in  athletics opportunities for men and          women  at Brown is the  result of a  gender-based differential in          the level of  interest in  sports and that  the district  court's          application  of  the  three-part test  requires  universities  to          provide  athletics  opportunities for  women  to  an extent  that          exceeds their relative interests and abilities in sports.   Thus,          at the heart  of this litigation is the question whether Title IX          permits  Brown to deny  its female students  equal opportunity to          participate in sports, based upon its unproven assertion that the          district court's finding of  a significant disparity in athletics          opportunities  for   male  and  female  students   reflects,  not          discrimination in Brown's  intercollegiate athletics program, but          a lack of  interest on the  part of its  female students that  is          unrelated to a lack of opportunities.                        We  view   Brown's  argument  that   women  are  less          interested   than   men  in   participating   in  intercollegiate                                         -52-                                         -52-          athletics, as well as its conclusion  that institutions should be          required to accommodate the interests and abilities of its female          students only  to the extent  that it accommodates  the interests          and abilities of  its male  students, with great  suspicion.   To          assert  that  Title  IX  permits institutions  to  provide  fewer          athletics  participation opportunities  for women  than for  men,          based upon the premise  that women are less interested  in sports          than are men,  is (among  other things) to  ignore the fact  that          Title  IX was  enacted  in order  to  remedy discrimination  that          results  from  stereotyped  notions  of  women's  interests   and          abilities.                        Interest and ability rarely develop in a vacuum; they          evolve as a function  of opportunity and experience.   The Policy          Interpretation   recognizes   that   women's   lower    rate   of          participation in athletics  reflects women's  historical lack  of          opportunities  to participate  in sports.   See  44 Fed.  Reg. at                                                      ___          71,419 ("Participation in intercollegiate sports has historically          been   emphasized  for  men  but  not  women.    Partially  as  a          consequence of this, participation  rates of women are  far below          those of men.").                      Moreover, the Supreme  Court has repeatedly condemned          gender-based  discrimination  based upon  "archaic  and overbroad          generalizations" about  women.  Schlesinger v.  Ballard, 419 U.S.                                          ___________     _______          498,  508  (1975).   See, e.g.,  Mississippi  Univ. for  Women v.                               ___  ____   _____________________________          Hogan,  458 U.S. 718, 725  (1982); Califano v.  Webster, 430 U.S.          _____                              ________     _______                                         -53-                                         -53-          313, 317 (1977);  Frontiero v. Richardson,  411 U.S. 677,  684-86                            _________    __________          (1973).   The  Court has been  especially critical of  the use of          statistical evidence offered  to prove generalized, stereotypical          notions  about men  and  women.   For  example, in  holding  that          Oklahoma's  3.2% beer  statute invidiously  discriminated against          males 18-20 years  of age, the Court in Craig  v. Boren, 429 U.S.                                                  _____     _____          190, 208-209  (1976), stressed  that "the principles  embodied in          the Equal Protection Clause are  not to be rendered  inapplicable          by  statistically measured but  loose-fitting generalities."  See                                                                        ___          also id.  at  202  ("statistics  exhibit  a  variety  of  .  .  .          ____ ___          shortcomings   that  seriously   impugn  their  value   to  equal          protection analysis");  id. at  204 ("proving broad  sociological                                  ___          propositions by statistics  is a dubious  business, and one  that          inevitably  is  in tension  with  the  normative philosophy  that          underlies the Equal Protection Clause"); Cannon, 441 U.S.  at 681                                                   ______          n.2 (observing with respect to the relevance of the University of          Chicago's  statistical evidence  regarding  the small  number  of          female applicants  to its medical  school, in comparison  to male          applicants, that  "the dampening impact of  a discriminatory rule          may  undermine  the  relevance  of  figures  relating  to  actual                                                                     ______          applicants").                      Thus,  there  exists  the  danger that,  rather  than          providing  a   true  measure  of  women's   interest  in  sports,          statistical  evidence  purporting  to  reflect  women's  interest          instead  provides only a measure  of the very discrimination that                                         -54-                                         -54-          is and  has been the  basis for  women's lack  of opportunity  to          participate in  sports.    Prong  three  requires  some  kind  of          evidence of  interest in  athletics, and  the Title  IX framework          permits the use of statistical evidence in assessing the level of          interest  in sports.15   Nevertheless,  to allow  a numbers-based                                            ____________________            15.  Under the Policy Interpretation,                                   Institutions  may determine  the athletic                      interests  and  abilities of  students by                      nondiscriminatory   methods    of   their                      choosing provided:                                a. The processes take into                           account      the     nationally                           increasing  levels  of  women's                           interests and abilities;                                b.    The    methods    of                           determining     interest    and                           ability do not disadvantage the                           members of  an underrepresented                           sex;                                c.    The    methods    of                           determining  ability take  into                           account     team    performance                           records; and                                d.    The   methods    are                           responsive  to  the   expressed                           interests  of students  capable                           of  intercollegiate competition                           who    are   members    of   an                           underrepresented sex.            44 Fed. Reg. at 71,417.                      The   1990  version  of   the  Title  IX  Athletics            Investigator's Manual, an internal agency document, instructs            investigating   officials  to   consider,  inter   alia,  the                                                       _____   ____            following: (i)  any institutional  surveys or  assessments of            students' athletics interests  and abilities, see  Valerie M.                                                          ___            Bonnette &  Lamar Daniel,  Department of Education,  Title IX            Athletics  Investigator's  Manual  at  22  (1990);  (ii)  the            "expressed interests" of the underrepresented gender,  id. at                                                                   ___            25;  (iii)   other  programs  indicative  of   interests  and            abilities,  such  as  club  and  intramural  sports,   sports            programs at  "feeder" schools, community and  regional sports                                         -55-                                         -55-          lack-of-interest  defense  to become  the  instrument  of further          discrimination against the underrepresented gender  would pervert          the remedial purpose  of Title IX.  We conclude  that, even if it          can be empirically demonstrated that, at a particular time, women          have less interest in sports than do men, such evidence, standing          alone, cannot justify providing fewer athletics opportunities for          women than  for men.   Furthermore,  such evidence is  completely          irrelevant where, as here,  viable and successful women's varsity          teams have been demoted or eliminated.  We emphasize that, on the          facts of this case, Brown's lack-of-interest  arguments are of no          consequence.  As  the prior panel recognized, while  the question          of full  and effective  accommodation of athletics  interests and          abilities  is potentially  a complicated  issue where  plaintiffs          seek to create a new team or to elevate to  varsity status a team          that  has never competed at the varsity level, no such difficulty                                            ____________________            programs, and physical education classes, id.                                                        ___                      As the  district court  noted, however,  the agency            characterizes  surveys as  a  "simple way  to identify  which            additional sports  might appropriately be created  to achieve            compliance. . . . Thus, a survey of interests would  follow a                                                                 ______            determination  that  an institution  does  not  satisfy prong            three; it would not be utilized to make that determination in            the first  instance."  Cohen III,  897 F. Supp. at  210 n.51;                                   _________            see  1990  Investigator's Manual  at  27  (explaining that  a            ___            survey  or  assessment  of  interests and  abilities  is  not            required   by  the   Title  IX   regulation  or   the  Policy            Interpretation but may be  required as part of a  remedy when            OCR has concluded that  an institution's current program does            not   equally  effectively  accommodate   the  interests  and            abilities of students).  (We  note that the text of the  1990            Investigator's Manual cited herein  at page 25 was apparently            at  page 27  of the  copy of the  Manual before  the district            court.)                                           -56-                                         -56-          is presented here, where  plaintiffs seek to reinstate  what were          successful university-funded teams right  up until the moment the          teams were demoted.16  Cohen II,  991 F.2d at 904; see also Cohen                                 ________                    ___ ____ _____          I,  809  F.  Supp.   at  992  ("Brown  is  cutting   off  varsity          _          opportunities where there is great interest and talent, and where                                                                  ___          Brown still  has  an  imbalance  between men  and  women  varsity          athletes in relation to their undergraduate enrollments.").                        On these facts, Brown's failure  to accommodate fully          and   effectively   the   interests   and   abilities    of   the          underrepresented    gender   is   clearly   established.      See                                                                        ___          Clarification Memorandum  at 8  ("If an institution  has recently          eliminated a  viable team  from the intercollegiate  program, OCR          will  find  that  there  is  sufficient  interest,  ability,  and          available competition to sustain  an intercollegiate team in that          sport  unless an  institution  can provide  strong evidence  that          interest,  ability or available  competition no longer exists.");          id. at 8-9  n.2 ("While  [other] indications of  interest may  be          ___          helpful  to  OCR  in  ascertaining  likely  interest  on  campus,          particularly  in  the  absence   of  more  direct  indicia[,]  an                                            ____________________            16.  The district  court  found that  the women's  gymnastics            team had won the Ivy League championship in 1989-90 and was a            "thriving university-funded  varsity team prior  to the  1991            demotion;"  that the  donor-funded women's  fencing team  had            been successful for  many years  and that its  request to  be            upgraded  to  varsity  status   had  been  supported  by  the            athletics director at the time; that the donor-funded women's            ski team  had been consistently competitive  despite a meager            budget; and that the club-status women's water polo  team had            demonstrated  the interest  and  ability to  compete at  full            varsity status.  Cohen III, 879 F. Supp. at 190.                              _________                                         -57-                                         -57-          institution  is  expected  to   meet  the  actual  interests  and          abilities  of its students and admitted students.").  Under these          circumstances,  the  district  court's  finding  that  there  are          interested women able to compete at the university-funded varsity          level,  Cohen III,  879  F. Supp.  at  212, is  clearly  correct.                  _________                      Finally,   the   tremendous    growth   in    women's          participation  in sports  since  Title IX  was enacted  disproves          Brown's  argument that women  are less  interested in  sports for          reasons  unrelated to lack of opportunity.  See, e.g., Mike Tharp                                                      ___  ____          et al., Sports  crazy! Ready, set,  go.  Why  we love our  games,                  ________________________________________________________          U.S. News & World Report, July 15, 1996, at 33-34 (attributing to          Title IX the explosive growth  of women's participation in sports          and the  debunking of  "the  traditional myth  that women  aren't          interested in sports").                      Brown's   relative  interests   approach  is   not  a          reasonable interpretation of the  three-part test.  This approach          contravenes the purpose of the statute and the regulation because          it does not permit an institution or a district court to remedy a          gender-based disparity in athletics  participation opportunities.          Instead,  this approach  freezes that  disparity by  law, thereby          disadvantaging further the underrepresented gender.  Had Congress          intended  to entrench, rather than change, the status quo -- with          its  historical emphasis on  men's participation opportunities to          the detriment of women's  opportunities -- it need not  have gone          to all the trouble of enacting Title IX.                                         -58-                                         -58-                                          V.                                          V.                      In the  first  appeal, this  court  rejected  Brown's          Fifth  Amendment  equal  protection  challenge  to  the statutory          scheme.  Cohen II, 991 F.2d at 900-901.  Here,  Brown argues that                   ________          its challenge is to the decision of the district court.  As Brown          puts  it, "[t]he  [equal  protection] violation  arises from  the          court's holding that  Title IX requires the imposition of quotas,          preferential treatment, and disparate treatment in the absence of          a compelling state interest and a determination that the remedial          measure is 'narrowly  tailored' to serve  that interest."   Reply          Br. at 18 (citing Adarand, --- U.S. at ---, 115 S. Ct. at 2117).                            _______                                          A.                                          A.                      To   the   extent    that   Brown   challenges    the          constitutionality of  the statutory scheme itself,  the challenge          rests  upon  at  least  two erroneous  assumptions:  first,  that          Adarand is controlling  authority on point  that compels us,  not          _______          only to consider Brown's  constitutional challenge anew, but also          to  apply  strict  scrutiny to  the  analysis;  second,  that the          district court's application of the law in its liability analysis          on remand  is inconsistent  with the interpretation  expounded in          the prior appeal.   We reject both premises.17   Brown's implicit                                            ____________________            17.  We assume,  without deciding, that Brown  has not waived            its equal  protection claim  and has  standing  to raise  it.            Appellees argue that  this claim is waived  because Brown did            not  raise it in  the district court.   Appellee's  Br. at 55            (citing  Desjardins v.  Van Buren  Community Hosp.,  969 F.2d                     __________     __________________________            1280, 1282 (1st Cir.  1992)).  Appellees also argue  that, to            the  extent that the equal  protection claim is viable, Brown                                         -59-                                         -59-          reliance on Adarand as contrary intervening controlling authority                      _______          that warrants  a departure from the  law of the  case doctrine is          misplaced  because, while Adarand does  make new law,  the law it                                    _______          makes  is wholly  irrelevant to the  disposition of  this appeal,          and, even  if Adarand did apply, it does not mandate the level of                        _______          scrutiny to be applied to gender-conscious government action.                      In  rejecting Brown's  equal  protection  claim,  the          Cohen  II  panel stated,  "It is  clear  that Congress  has broad          _________          powers under the Fifth  Amendment to remedy past discrimination."          991   F.2d  at  901.     The  panel  cited   as  authority  Metro                                                                      _____          Broadcasting,  497  U.S.  at  565-66 (for  the  proposition  that          ____________          "Congress need  not make  specific findings of  discrimination to          grant race-conscious relief"), and  Califano v. Webster, 430 U.S.                                              ________    _______          at 317 (noting  that Webster  upheld a social  security wage  law                               _______          that  benefitted women  "in  part because  its  purpose was  'the          permissible   one  of   redressing  our   society's  longstanding          disparate treatment of women'").  Cohen II, 991 F.2d at 901.  The                                            ________          panel  also noted that, in spite of the scant legislative history          regarding Title IX as  it applies to athletics, Congress  heard a          great deal of testimony regarding discrimination against women in          higher  education  and  acted  to  reverse  the  Supreme  Court's          decision  in Grove  City College  v. Bell,  465 U.S.  555, 573-74                       ___________________     ____                                            ____________________            lacks standing to  raise it.   Appellee's Br.  at 56  (citing            Powers  v. Ohio,  499  U.S. 400,  111  S. Ct.  1364,  1370-71            ______     ____            (1991)).   Given  our disposition  of this  claim, we  do not            address these arguments.                                           -60-                                         -60-          (1984)  (holding that  Title IX  was "program-specific"  and thus          applied only  to those university programs  that actually receive          federal  funds and  not  to the  rest  of the  university),  with          athletics prominently in mind.  Cohen II, 991 F.2d at 901.                                             ________                      In Metro Broadcasting, the Court upheld two federally                         __________________          mandated  race-based  preference   policies  under   intermediate          scrutiny.  497 U.S. at 564-65 (holding that benign race-conscious          measures  mandated by Congress  "are constitutionally permissible          to the  extent that they serve  important governmental objectives          within the power  of Congress  and are  substantially related  to          achievement of those objectives").   The Metro Broadcasting Court                                                   __________________          applied intermediate scrutiny,  notwithstanding that the previous          year,  in Croson, 488 U.S. 469, the Court applied strict scrutiny                    ______          in striking down a municipal  minority set-aside program for city          construction   contracts.      The   Metro   Broadcasting   Court                                               ____________________          distinguished  Croson,  noting  that  "[i]n  fact,  much  of  the                         ______          language  and  reasoning  in  Croson  reaffirmed  the  lesson  of                                        ______          Fullilove18  that  race-conscious   classifications  adopted   by          _________          Congress to address racial  and ethnic discrimination are subject                                            ____________________            18.  In  Fullilove,  a  plurality  of  the  Court  applied  a                     _________            standard   subsequently   acknowledged  to   be  intermediate            scrutiny,  see  Metro  Broadcasting,  497  U.S.  at  564,  in                       ___  ___________________            upholding   against  a   Fifth  Amendment   equal  protection            challenge a benign race-based affirmative action program that            was  adopted by  an  agency  at  the  explicit  direction  of            Congress.    The  Fullilove plurality  inquired  "whether the                              _________            objectives  of  th[e] legislation  are  within  the power  of            __________            Congress[]" and "whether the limited use of racial and ethnic            criteria  . . .  is a constitutionally  permissible means for                                                                _____            achieving the congressional objectives."  448 U.S. at 473.                                          -61-                                         -61-          to a  different standard than such  classifications prescribed by          state and local governments."    Metro Broadcasting, 497  U.S. at                                           __________________          565.                      Adarand  overruled Metro  Broadcasting to  the extent                      _______            ___________________          that Metro  Broadcasting is  inconsistent with Adarand's  holding               ___________________                       _______          that "all  racial classifications,  imposed by  whatever federal,          state, or local government actor, must be analyzed by a reviewing          court  under strict scrutiny."  Adarand, ---  U.S. at ---, 115 S.                                          _______          Ct. at  2113.   Brown impliedly  assumes  that Adarand's  partial                                                         _______          overruling of  Metro Broadcasting invalidates  the prior  panel's                         __________________          disposition of  Brown's equal  protection challenge by  virtue of          its passing citation  to Metro Broadcasting.   This assumption is                                   __________________          erroneous because the proposition for which Cohen II cited  Metro                                                      ________        _____          Broadcasting as authority has not been vitiated by Adarand, is of          ____________                                       _______          no  consequence to our disposition  of the issues  raised in this          litigation, and is, in any event, unchallenged here.19                                            B.                                          B.                      The  prior  panel  rejected Brown's  Fifth  Amendment          equal  protection20 and  "affirmative action"  challenges  to the                                            ____________________            19.  Cohen   II  cited  Metro   Broadcasting  for  a  general                 __________         ____________________            principle  regarding  Congress's   broad  powers  to   remedy            discrimination,  a  proposition  that  was  not  reached   by            Adarand.  Moreover, Webster, which Cohen II  cited along with            _______             _______        ________            Metro Broadcasting, was not overruled or in any way  rendered            __________________            suspect by Adarand.                            _______            20.  It  is  well  settled  that  the   reach  of  the  equal            protection  guarantee  of  the Fifth  Amendment  Due  Process            Clause  -- the basis for Brown's equal protection claim -- is            coextensive  with  that  of the  Fourteenth  Amendment  Equal                                         -62-                                         -62-          statutory  scheme.   Cohen  II,  991  F.2d  at  901  (finding  no                               _________          constitutional infirmity, assuming arguendo, that  the regulation                                             ________          creates a classification somewhat  in favor of women).   Thus, to          the  extent that  Brown challenges  the statutory  scheme itself,          that  challenge is foreclosed under the law of the case doctrine.          Nevertheless, the  remedy ordered for  a violation  of a  federal          anti-discrimination statute is still  subject to equal protection          review, assuming that it constitutes  gender-conscious government          action.   See  Miller,  --- U.S.  at  ---, 115  S.  Ct. at  2491.                    ___  ______          Therefore,  we  review  the  constitutionality  of  the  district          court's  order  requiring  Brown  to  comply  with  Title  IX  by          accommodating fully and effectively  the athletics interests  and          abilities  of  its  women   students.    Because  the  challenged          classification  is gender-based,  it must  be analyzed  under the          intermediate scrutiny  test.  Before proceeding  to the analysis,          however, we must  first address Brown's challenge to the standard          of review.                        Brown concedes that  Adarand "does not,  in partially                                           _______          overruling Metro  Broadcasting, set forth the  proper standard of                     ___________________          review for this  case."   Appellant's Br. at  29.   Nevertheless,          Brown asserts  that "[w]hile Adarand  is a case  involving racial                                       _______          classification,   its  analysis   clearly   applies   to   gender          classification as  well."  Id.  at 27.   Further, inappropriately                                     ___                                            ____________________            Protection Clause.  E.g., United States v. Paradise, 480 U.S.                                ____  _____________    ________            at  166 n.16; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2                          __________    __________            (1975).                                          -63-                                         -63-          relying on Frontiero,  411 U.S.  677, and Croson,  488 U.S.  469,                     _________                      ______          Brown concludes  that  strict scrutiny  applies  to  gender-based          classifications.21   Appellant's Br. at  29; Reply Br.  at 19-20.          These conclusory assertions do  not comport with the law  in this          circuit.                      First, as explained earlier, Adarand and Croson apply                                                   _______     ______          to  review of legislative affirmative  action schemes.  This case          presents  the issue of the legality of a federal district court's          determination, based  upon adjudicated  findings of fact,  that a          federal anti-discrimination statute has been violated, and of the                                            ____________________            21.  In Frontiero,  a plurality  of the Court  concluded that                    _________            gender-based  classifications,  "like  classifications  based            upon  race,  alienage,  or  national origin,  are  inherently            suspect, and  must therefore be subjected  to strict judicial            scrutiny."  411 U.S. at 688.  In the 23 years that have since            elapsed, this  position has never commanded a majority of the            Court,  and has never been  adopted by this  court.  Whatever            may be the merits of adopting strict scrutiny as the standard            to  be  applied   to  gender-based  classifications,   it  is            inappropriate  to  suggest,  as  Brown does,  that  Frontiero                                                                _________            compels its application here.                         Brown's  assertion  that  Adarand  obligates  this                                                 _______            court to apply Croson  to its equal protection claim  is also                           ______            incorrect.   As  noted previously,  Croson is  an affirmative                                                ______            action  case and  does  not  control  review  of  a  judicial            determination that a federal anti-discrimination  statute has            been  violated.  To the extent that Brown assumes that Croson                                                                   ______            governs the issue of the sufficiency of the factual predicate            required  to uphold  a  federally mandated,  benign race-  or            gender-based   classification,   that   assumption  is   also            unfounded.   As we have explained,  Croson's factual concerns                                                ______            are  not  raised  by  a  district  court's  determination  --            predicated  upon  duly adjudicated  factual  findings bearing            multiple indicia of reliability  and specificity -- of gender            discrimination in  violation of a  federal statute.   We also            point  out that  Adarand did  not reach  the question  of the                             _______            sufficiency  of the  factual  predicate  required to  satisfy            strict scrutiny  review of a  congressionally mandated  race-            based classification.                                           -64-                                         -64-          statutory  and  constitutional propriety  of the  judicial remedy          ordered to provide  redress to plaintiffs with standing  who have          been injured by the violation.                       Second,   Adarand  does   not  even   discuss  gender                                _______          discrimination, and  its holding  is limited to  explicitly race-          based classifications.  --- U.S. at ---, 115  S. Ct. at 2113.  It          can  hardly be assumed that the Court intended to include gender-                         _______          based classifications within  Adarand's precedential scope or  to                                        _______          elevate, sub silentio, the level  of scrutiny to be applied by  a                   ___ ________          reviewing court to such classifications.                      Third, even if Adarand did apply, it does not dictate                                     _______          the  level of  scrutiny  to be  applied  in this  case, as  Brown          concedes.    For the  last twenty  years,  the Supreme  Court has          applied  intermediate   scrutiny  to  all  cases   raising  equal          protection challenges to gender-based  classifications, including          the  Supreme  Court's  most  recent  gender discrimination  case,          United States v. Virginia,  --- U.S. ---, 116 S. Ct.  2264 (1996)          _____________    ________          ("Virginia"); see id. at 2288 (Rehnquist, C.J., concurring in the            ________    ___ ___          judgment) (collecting cases).22                                            ____________________            22.  We  point out that Virginia adds nothing to the analysis                                    ________            of    equal    protection    challenges    to    gender-based            classifications that has not been part of that analysis since            1979, long before Cohen  II was decided.  While  the Virginia                              _________                          ________            Court made liberal use  of the phrase "exceedingly persuasive            justification,"   and   sparse   use   of   the   formulation            "substantially   related   to   an   important   governmental            objective,"  the Court nevertheless  struck down  the gender-            based  admissions   policy  at  issue  in   that  case  under            intermediate scrutiny, --- U.S.  at ---, 116 S. Ct.  at 2271,            2275;  id.  at  2288  (Rehnquist,  C.J.,  concurring  in  the                   ___                                         -65-                                         -65-                      Fourth, it is important to recognize that controlling          authority  does  not  distinguish  between  invidious and  benign          discrimination in the context of gender-based classifications, as          it  has in the context  of racial classifications.   Neither this          court nor the  Supreme Court  has drawn this  distinction in  the          context  of gender  discrimination  claims or  held  that a  less          stringent standard applies in cases involving benign, rather than          invidious, gender discrimination.   See Hogan, 458 U.S. at  724 &                                              ___ _____          n.9  (reviewing benign  gender-conscious admissions  policy under          intermediate scrutiny and recognizing  that the analysis does not          change with the objective  of the classification); accord Wygant,                                                             ______ ______          476 U.S. at 273.  Thus, the analytical result would be same, even          if this were an affirmative action case.                      Under   intermediate   scrutiny,   the    burden   of          demonstrating  an  exceedingly  persuasive  justification  for  a          government-imposed,  gender-conscious  classification  is met  by          showing that  the  classification serves  important  governmental          objectives, and that the means employed are substantially related                                            ____________________            judgment),    the    standard    applied   to    gender-based            classifications since  1976, when  it was first  announced in            Craig v. Boren, 429 U.S. at 197, and the test applied in both            _____    _____            Metro Broadcasting and Webster.              __________________     _______                      The  phrase "exceedingly  persuasive justification"            has been employed routinely by the Supreme Court in  applying            intermediate scrutiny to gender discrimination claims and is,            in  effect a  short-hand expression  of  the well-established            test.    See Personnel  Adm'r v.  Feeney,  442 U.S.  256, 273                     ___ ________________     ______            (1979);  Kirchberg v.  Feenstra,  450 U.S.  455, 461  (1981);                     _________     ________            Hogan, 458 U.S. at  724; J.E.B. v. Alabama ex  rel. T.B., 511            _____                    ______    _____________________            U.S. 127, 136-37 (1994).                                            -66-                                         -66-          to the achievement of those objectives.  E.g., Hogan, 458 U.S. at                                                   ____  _____          724.  Applying that test,  it is clear that the  district court's          remedial order passes constitutional muster.                       We find that the first part of the test is satisfied.          The  governmental objectives  of "avoid[ing]  the use  of federal          resources to support  discriminatory practices," and "provid[ing]          individual   citizens   effective   protection    against   those          practices,"  Cannon,  441  U.S.  at 704,  are  clearly  important                       ______          objectives.   We also find  that judicial enforcement  of federal          anti-discrimination   statutes   is   at   least   an   important          governmental objective.                       Applying  the   second  prong  of   the  intermediate          scrutiny  test, we find that  the means employed  by the district          court  in  fashioning  relief  for the  statutory  violation  are          clearly  substantially  related  to these  important  objectives.          Intermediate scrutiny does not require that there be no other way          to accomplish the objectives, but even if that were the standard,          it  would be  satisfied in  the unique  context presented  by the          application of Title IX to athletics.                        As explained  previously, Title  IX as it  applies to          athletics is  distinct from other anti-discrimination  regimes in          that  it is  impossible to  determine compliance  or to  devise a          remedy  without counting and  comparing opportunities with gender          explicitly in mind.   Even under the individual rights  theory of          equal  protection, reaffirmed in Adarand, --- U.S. at ---, 115 S.                                           _______                                         -67-                                         -67-          Ct. at 2112 (the  equal protection guarantee "protect[s] persons,          not groups"),  the only way to determine whether the rights of an          individual  athlete  have  been   violated  and  what  relief  is          necessary to remedy the  violation is to engage in  an explicitly          gender-conscious comparison.  Accordingly, even assuming that the          three-part  test  creates  a gender  classification  that  favors          women, allowing consideration of gender in determining the remedy          for  a  Title  IX  violation serves  the  important  objective of          "ensur[ing]   that   in    instances   where   overall   athletic          opportunities decrease, the actual opportunities available to the          underrepresented gender  do not."   Kelley, 35  F.3d at 272.   In                                              ______          addition, a gender-conscious  remedial scheme is constitutionally          permissible  if  it  directly   protects  the  interests  of  the          disproportionately burdened gender.   See Hogan, 458  U.S. at 728                                                ___ _____          ("In   limited   circumstances,  a   gender-based  classification          favoring  one  sex can  be  justified  if  it  intentionally  and          directly assists  members of  the sex that  is disproportionately          burdened.").                      Under  Brown's interpretation of the three-part test,          there can never be a  remedy for a violation of Title  IX's equal          opportunity  mandate.   In concluding  that the  district court's          interpretation and  application of the three-part  test creates a          quota,  Brown errs, in part,  because it fails  to recognize that          (i) the substantial proportionality test of prong one is only the          starting point, and not the conclusion, of the analysis; and (ii)                                         -68-                                         -68-          prong  three is  not implicated  unless a  gender-based disparity          with  respect to athletics  participation opportunities  has been          shown to exist.  Where such a disparity has been established, the          inquiry under prong three is whether the athletics interests  and          abilities   of  the   underrepresented  gender   are   fully  and          effectively accommodated, such that  the institution may be found          to comply with Title IX, notwithstanding the disparity.23                        Of course,  a remedy that requires  an institution to          cut, add, or elevate the  status of athletes or entire teams  may          impact the genders differently, but this will be so only if there          is   a   gender-based  disparity   with   respect  to   athletics          opportunities to  begin with, which  is the only  circumstance in          which  prong three  comes into play.   Here, however,  it has not          been shown that Brown's men students will be disadvantaged by the          full and  effective accommodation of the  athletics interests and          abilities of its women students.                                         VI.                                         VI.                      Brown assigns error to the district court's exclusion          of  certain  evidence  pertaining   to  the  relative   athletics          interests of  men  and women.    Reviewing the  district  court's                                            ____________________            23.  Under  the three-part  test,  the institution  may  also            excuse the disparity under prong  two, by showing a  "history            and   continuing  practice  of  program  expansion  which  is            demonstrably  responsive  to   the  developing  interest  and            abilities of the [underrepresented  gender]," 44 Fed. Reg. at            71,418,  in which  case the  compliance inquiry  ends without            reaching  prong three.    It has  been determined  that Brown            cannot avail itself of  this defense.  See Cohen  III, 879 F.                                                   ___ __________            Supp. at 211.                                          -69-                                         -69-          evidentiary rulings for  abuse of  discretion, see  Sinai v.  New                                                         ___  _____     ___          England Tel. and Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993), cert.          _________________________                                   _____          denied, --- U.S.  ---, 115 S. Ct. 597 (1994), we find none.            ______                      Brown first contends that  the court erred in barring          cross-examination of plaintiffs' expert Dr. Sabor on the issue of          why  girls drop out of  sports before reaching  college.  Because          Dr. Sabor's direct testimony  did not address this issue,  it was          within the district court's discretion to limit cross-examination          "to the subject matter of the direct examination."  Fed. R. Evid.          611(b); see Ferragama v. Chubb Life Ins. Co. of Am.,  94 F.3d 26,                  ___ _________    __________________________          28 (1st Cir. 1996).                        Brown  also   suggests  that  the   district  court's          exclusion of statistical  and survey data  offered in support  of          its relative interests argument  constitutes error.  Although the          district court  excluded as full  exhibits two studies,  the NCAA          Gender Equity Study and  the results of an undergraduate  poll on          student interest in athletics, it nevertheless permitted  Brown's          experts to rely  on the data contained in these  two reports as a          basis  for  their expert  opinions.24    Because Brown's  experts                                            ____________________            24.  Brown  also contends  that the  district court  erred in            excluding the NCAA Annual Report.   Appellant's Br. at 56-57.            Brown merely asserts, however, that the "study was admissible            under Rule 803," id. at  57, and offers no explanation  as to                             ___            how it was prejudiced by the exclusion.  Accordingly, we deem            the argument waived.  Ryan v. Royal Ins. Co. of Am., 916 F.2d                                  ____    _____________________            731, 734 (1st Cir. 1990) ("It is settled in this circuit that            issues  adverted  to  on  appeal  in  a  perfunctory  manner,            unaccompanied by some developed argumentation, are deemed  to            have been abandoned.") (citations omitted).                                            -70-                                         -70-          relied  upon the excluded data in providing their opinions on the          issue  of  a gender-based  differential  in  student interest  in          athletics,  the evidence  was before  the trier  of fact  and any          error was, therefore, harmless.  See McDonough Power Equip., Inc.                                           ___ ____________________________          v.  Greenwood, 464  U.S. 548,  553 (1984)  (instructing appellate              _________          courts  to  "ignore  errors  that  do  not  affect the  essential          fairness of the trial").                                           VII.                                         VII.                      It  does   not   follow  from   our   statutory   and          constitutional  analyses that  we  endorse the  district  court's          remedial order.   Although we decline Brown's invitation  to find          that the district court's  remedy was an abuse of  discretion, we          do find that  the district  court erred in  substituting its  own          specific  relief  in  place of  Brown's  statutorily  permissible          proposal to comply  with Title  IX by cutting  men's teams  until          substantial proportionality was achieved.                      In Cohen II we stated that it  is "established beyond                         ________          peradventure  that,  where   no  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."    991  F.2d  at  901  (citing          Franklin,  503 U.S. at 70-71).   We also  observed, however, that          ________          "[w]e  are   a  society  that  cherishes   academic  freedom  and          recognizes  that  universities  deserve  great  leeway  in  their          operations."  991  F.2d at 906 (citing Wynne v.  Tufts Univ. Sch.                                                 _____     ________________                                         -71-                                         -71-          of Med.,  976 F.2d 791,  795 (1st Cir.  1992), cert.  denied, 507          _______                                        _____  ______          U.S. 1030 (1993); Lamphere v. Brown Univ., 875 F.2d 916, 922 (1st                            ________    ___________          Cir.  1989)).   Nevertheless,  we have  recognized that  academic          freedom does not embrace the freedom to discriminate.  Villanueva                                                                 __________          v.  Wellesley  College,  930  F.2d   124,  129  (1st  Cir.  1991)              __________________          (citations omitted).                      The district court itself  pointed out that Brown may          achieve compliance with Title IX in a number of ways:                      It  may  eliminate  its athletic  program                      altogether, it may elevate or  create the                      requisite number of women's positions, it                      may  demote  or  eliminate the  requisite                      number  of  men's  positions,  or  it may                      implement   a    combination   of   these                      remedies.  I leave it entirely to Brown's                      discretion to decide how it  will balance                      its    program     to    provide    equal                      opportunities  for  its  men   and  women                      athletes.    I  recognize  the  financial                      constraints Brown faces; however, its own                      priorities will necessarily determine the                      path to compliance it elects to take.          Cohen III, 879 F. Supp.  at 214; see also  Cohen II, 991 F.2d  at          _________                        ___ ____  ________          898  n.15 (noting that a school may achieve compliance with Title          IX by "reducing opportunities for the overrepresented gender").                      With  these precepts  in mind,  we first  examine the          compliance plan Brown submitted to the district court in response          to  its order.    We then  consider  the district  court's  order          rejecting  Brown's plan  and the  specific relief ordered  by the          court in its place.                      Brown's proposed  compliance plan stated its  goal as          follows:                                         -72-                                         -72-                      The  plan  has one  goal:    to make  the                      gender   ratio  among   University-funded                      teams     at      Brown     substantially                      proportionate  to the gender ratio of the                      undergraduate  student body.   To  do so,                      the   University   must   disregard   the                      expressed   athletic  interests   of  one                      gender  while  providing  advantages  for                      others.     The  plan   focuses  only  on                                  _____________________________                      University-funded  sports,  ignoring  the                      _________________________________________                      long  history of  successful donor-funded                      _________________________________________                      student teams.                      _____________          Brown's Plan at 1 (emphasis added).                      In its introduction, Brown makes clear that it "would          prefer  to  maintain  its  current program"  and  that  the  plan          submitted                      is  inconsistent with  Brown's philosophy                      to the  extent that it  grants advantages                      and  enforces disadvantages  upon student                      athletes solely because  of their  gender                      and curbs the historic role of coaches in                      determining the number of  athletes which                      can   be   provided  an   opportunity  to                      participate.         Nevertheless,    the                      University  wishes to  act in  good faith                      with    the    order   of    the   Court,                      notwithstanding  issues  of fact  and law                      which are currently in dispute.          Id. at 2.            ___                      Brown states that it  "seeks to address the  issue of          proportionality  while  minimizing  additional  undue  stress  on          already strained physical and fiscal resources."  Id.                                                            ___                      The general provisions of  the plan may be summarized          as  follows: (i) Maximum squad sizes  for men's teams will be set          and enforced.  (ii) Head  coaches of all teams must  field squads          that  meet  minimum  size  requirements.    (iii)  No  additional                                         -73-                                         -73-          discretionary  funds will be used  for athletics.   (iv) Four new          women's junior varsity teams -- basketball, lacrosse, soccer, and          tennis  --  will  be  university-funded.   (v)  Brown  will  make          explicit a de facto junior varsity team for women's field hockey.                     __ _____          Id. at 3-4.            ___                      The   plan   sets   forth    nine   steps   for   its          implementation,  id. at  4-5, and  concludes that  "if  the Court                           ___          determines   that  this   plan   is  not   sufficient  to   reach          proportionality, phase two will be the elimination of one or more          men's teams," id. at 5.                        ___                      The district court found  Brown's plan to be "fatally          flawed" for two reasons.  First, despite the fact that 76 men and          30  women participated  on  donor-funded  varsity teams,  Brown's          proposed  plan disregarded  donor-funded varsity  teams. District          Court Order  at 5-6.   Second, Brown's plan  "artificially boosts          women's  varsity numbers  by adding  junior varsity  positions on          four women's teams."   Id. at 6.  As to the  propriety of Brown's                                 ___          proposal  to  come  into compliance  by  the  addition  of junior          varsity positions, the district court held:                      Positions  on   distinct  junior  varsity                      squads do not qualify as "intercollegiate                      competition"   opportunities  under   the                      Policy Interpretation and  should not  be                      included in defendants'  plan.  As  noted                      in   Cohen,   879   F.  Supp.   at   200,                           _____                      "intercollegiate"  teams  are those  that                      "regularly    participate    in   varsity                      competition."  See 44 Fed. Reg. at 71,413                                     ___                      n.1.      Junior   varsity   squads,   by                      definition, do not  meet this  criterion.                      Counting   new  women's   junior  varsity                                         -74-                                         -74-                      positions  as  equivalent  to men's  full                      varsity positions flagrantly violates the                      spirit  and letter  of Title  IX;   in no                      sense is an  institution providing  equal                      opportunity   if   it   affords   varsity                      positions  to  men  but   junior  varsity                      positions to women.            District Court Order at 6 (footnote omitted).                      The district court found that these two flaws  in the          proposed plan were sufficient to show that Brown had "not made  a          good  faith effort to comply with this  Court's mandate."  Id. at                                                                     ___          8.          In criticizing  another  facet of  Brown's plan,  the          district court pointed out that                      [a]n institution does  not provide  equal                      opportunity  if it  caps its  men's teams                      after  they  are well-stocked  with high-                      caliber recruits  while requiring women's                      teams to boost numbers by accepting walk-                      ons.   A  university  does not  treat its                      men's and  women's  teams equally  if  it                      allows  the coaches of men's teams to set                      their  own  maximum  capacity limits  but                      overrides  the  judgment  of  coaches  of                      women's teams on the same matter.          Id. at 8-9.          ___                      After rejecting Brown's proposed plan, but bearing in          mind Brown's stated objectives,  the district court fashioned its          own remedy:                      I  have  concluded  that  Brown's  stated                      objectives  will  be  best  served  if  I                      design  a remedy to meet the requirements                      of prong three rather than prong one.  In                      order to bring Brown into compliance with                      prong one under  defendants' Phase II,  I                      would have  to order Brown  to cut enough                      men's  teams  to eradicate  approximately                      213  men's  varsity   positions.     This                      extreme  action is  entirely unnecessary.                                         -75-                                         -75-                      The easy answer lies in ordering Brown to                      comply with prong  three by upgrading the                      women's gymnastics,  fencing, skiing, and                      water  polo  teams  to  university-funded                      varsity status.  In this way, Brown could                      easily achieve prong three's  standard of                      "full and effective accommodation  of the                      underrepresented sex."  This remedy would                      entail   upgrading   the   positions   of                      approximately  40  women.  In   order  to                      finance   the   40   additional   women's                      positions, Brown certainly will  not have                      to  eliminate as  many as  the 213  men's                      positions that would be cut under Brown's                      Phase  II  proposal.    Thus,  Brown will                      fully comply with Title IX by meeting the                      standards   of   prong   three,   without                      approaching satisfaction of the standards                      of prong one.                        It is  clearly in  the  best interest  of                      both the male and the  female athletes to                      have an increase in women's opportunities                      and   a   small    decrease   in    men's                      opportunities, if necessary, rather than,                      as  under Brown's  plan,  no increase  in                                                __                      women's   opportunities   and   a   large                                                          _____                      decrease    in    men's    opportunities.                      Expanding women's  athletic opportunities                      in  areas where  there is  proven ability                      and interest is the very purpose of Title                      IX  and  the simplest,  least disruptive,                      route to Title IX compliance at Brown.          Id. at 11-12.          ___                      The  district  court  ordered Brown  to  "elevate and          maintain women's gymnastics, women's  water polo, women's skiing,          and women's fencing to university-funded varsity status."  Id. at                                                                     ___          12.   The court stayed this part  of the order pending appeal and          further ordered that, in  the interim, the preliminary injunction          prohibiting  Brown  from  eliminating  or  demoting  any existing          women's varsity team would remain in effect.  Id.                                                        ___                                         -76-                                         -76-                      We  agree  with  the  district   court  that  Brown's          proposed  plan fell  short of  a good  faith  effort to  meet the          requirements of Title IX as explicated  by this court in Cohen II                                                                   ________          and as applied by the district court on remand.  Indeed, the plan          is replete with argumentative  statements more appropriate for an          appellate brief.  It  is obvious that Brown's plan  was addressed          to this court,  rather than to offering a  workable solution to a          difficult problem.                      It  is clear, nevertheless,  that Brown's proposal to          cut men's teams is a permissible means of effectuating compliance          with  the statute.   Thus,  although  we understand  the district          court's reasons  for substituting  its own specific  relief under          the circumstances at the time, and although the district  court's          remedy  is within  the statutory  margins and  constitutional, we          think that  the district court  was wrong  to reject  out-of-hand          Brown's alternative plan  to reduce the  number of men's  varsity          teams.  After all,  the district court itself stated that  one of          the  compliance options available to  Brown under Title  IX is to          "demote or  eliminate the  requisite number of  men's positions."          Cohen III, 879 F. Supp. at 214.  Our respect for academic freedom          _________          and  reluctance  to  interject  ourselves  into  the  conduct  of          university  affairs counsels  that we  give universities  as much          freedom as possible in conducting their operations consonant with          constitutional  and statutory limits.  Cohen II, 991 F.2d at 906;                                                 ________          Villanueva, 930 F.2d at 129.          __________                                         -77-                                         -77-                      Brown therefore should be afforded the opportunity to          submit another plan for compliance with Title IX.  The context of          the  case has  changed in  two significant  respects since  Brown          presented its original plan.  First, the substantive issues  have          been decided adversely to Brown.  Brown is no longer an appellant          seeking a favorable result in the Court  of Appeals.  Second, the          district  court is not under  time constraints to  consider a new          plan and fashion a remedy so as to expedite appeal.  Accordingly,          we remand the case to the district court so that Brown can submit          a  further plan for its consideration.  In all other respects the          judgment  of the  district court  is  affirmed.   The preliminary          injunction issued by the district court in Cohen I,  809 F. Supp.                                                     _______          at 1001, will remain in effect pending a final remedial order.                                        VIII.                                        VIII.                      There can be no  doubt that Title IX has  changed the          face of women's sports as well  as our society's interest in  and          attitude  toward women athletes  and women's sports.   See, e.g.,                                                                 ___  ____          Frank DeFord, The Women  of Atlanta, Newsweek, June 10,  1996, at                        _____________________          62-71; Tharp, supra,  at 33;  Robert Kuttner,  Vicious Circle  of                        _____                            __________________          Exclusion,  Washington  Post, September  4,  1996,  at  A15.   In          _________          addition,  there  is  ample  evidence  that  increased  athletics          participation opportunities for women and  young girls, available          as a result of Title IX enforcement, have had salutary effects in          other areas of societal concern.  See DeFord, supra, at 66.                                             ___         _____                                         -78-                                         -78-                      One  need  look   no  further  than  the   impressive          performances  of our country's women athletes in the 1996 Olympic          Summer Games to see that Title IX has had a dramatic and positive          impact on the capabilities of our women athletes, particularly in          team sports.  These Olympians represent the first full generation          of  women  to  grow  up  under  the  aegis  of  Title  IX.    The          unprecedented  success  of these  athletes  is due,  in  no small          measure, to Title IX's beneficent  effects on women's sports,  as          the athletes themselves have  acknowledged time and again.   What          stimulated  this  remarkable change  in  the  quality of  women's          athletic  competition  was not  a  sudden,  anomalous upsurge  in          women's interest  in sports,  but the  enforcement of  Title IX's          mandate of gender equity in sports.  Kuttner, supra, at A15.                                                           _____                      Affirmed in part, reversed  in part, and remanded for                      Affirmed in part  reversed  in part, and remanded for          further proceedings.  No costs on appeal to either party.          further proceedings.  No costs on appeal to either party.                            - Dissenting opinion follows -                            - Dissenting opinion follows -                                         -79-                                         -79-                    TORRUELLA, Chief Judge (Dissenting).   Because I am not                    TORRUELLA, Chief Judge (Dissenting).                               ___________          persuaded  that the majority's  view represents the  state of the          law today, I respectfully dissent.                                I. THE LAW OF THE CASE                                I. THE LAW OF THE CASE                    Under the doctrine of the "law of the case," a decision          on  an issue  of law  made by the  court at  one stage  of a case          becomes  a binding precedent to  be followed in successive stages          of the  same  litigation except  in unusual  circumstances.   See                                                                        ___          Abbadessa v. Moore  Business Forms,  Inc., 987 F.2d  18, 22  (1st          _________    ____________________________          Cir. 1993); EEOC v. Trabucco, 791 F.2d 1, 2  (1st Cir. 1986).  It                      ____    ________          is  well established,  however, that  a  decision of  the Supreme          Court, that is rendered between two appeals and is irreconcilable          with the  decision on the first  appeal, must be  followed on the          second  appeal.   See  Linkletter v.  Walker,  381 U.S.  618, 627                            ___  __________     ______          (1965);  Metcalf & Eddy, Inc.  v. Puerto Rico  Aqueduct and Sewer                   ____________________     _______________________________          Auth., 945 F.2d 10, 12 (1st  Cir. 1991), rev'd on other  grounds,          _____                                    _______________________          506 U.S. 139  (1993); Young v.  Herring, 917  F.2d 858 (5th  Cir.                                _____     _______          1990);  Fogel v.  Chestnutt, 668  F.2d 100,  109 (2d  Cir. 1981),                  _____     _________          cert. denied, 459 U.S. 828 (1982).  I believe that we face such a          ____________          situation in the instant case.                    A.   Adarand and Metro Broadcasting                    A.   Adarand and Metro Broadcasting                         _______     __________________                    At  the time of Cohen v. Brown University, 991 F.2d 888                                    _____    ________________          (1st Cir.  1993) (Cohen  II), the standard  intermediate scrutiny                            _________          test  for discriminatory  classifications  based on  sex required          that "a statutory classification must be substantially related to                                         -80-                                         -80-          an important government  objective."   Clark v.  Jeter, 486  U.S.                                                 _____     _____          456, 461 (1988); see  also Mississippi Univ. for Women  v. Hogan,                           _________ ___________________________     _____          458  U.S. 718, 723-24, and  n.9 (1982); Mills  v. Habluetzel, 456                                                  _____     __________          U.S. 91, 99  (1982); Craig v.  Boren, 429 U.S.  190, 197  (1976);                               _____     _____          Matthews v.  Lucas, 427 U.S. 495, 505-06 (1976).  As was also the          ________     _____          case under  strict scrutiny review prior  to Adarand Construction                                                       ____________________          Inc.   v.  Pena, __  U.S. __,  115 S.  Ct. 2097  (1995), however,          ____       ____          courts applying intermediate scrutiny sometimes  allowed "benign"          gender  classifications   on  the   grounds  that  they   were  a          "reasonable means of compensating women as a class for past . . .          discrimination."   Ronald D. Rotunda & John E. Novack, 3 Treatise                                                                   ________          on Constitutional Law    18.23, at 277; see Califano  v. Webster,          _____________________                   ___ ________     _______          430  U.S.  313, 317  (1977)  (allowing women  to  compute certain          social security benefits with a more favorable formula than could          be used by  men); Lewis v.  Cohen, 435 U.S.  948 (1978)  (summary                            _____     _____          affirmance of a  district court decision upholding a provision of          the Railroad Retirement Act  that allowed women to retire  at age          60 while men could not retire until age 65).                    In Cohen II, we applied precisely  this type of benign-                       ________          classification analysis  to what  we viewed to  be benign  gender          discrimination by the federal government.   Although Cohen II, in                                                               ________          its brief  discussion of  the  equal protection  issue, does  not          specify the precise standard it used, the court stated that "even          if we were to  assume . . . that the  regulation creates a gender          classification slanted somewhat  in favor of women, we would find                                         -81-                                         -81-          no  constitutional infirmity."  Cohen II,  991 F.2d at 901.  Note                                          ________          that the focus is on  the government's ability to favor  women in          this context, rather than on an "important government objective,"          suggesting  that  the court  considered the  issue  to be  one of          benign discrimination.  Indeed,  no governmental interest is even          identified in Cohen II.  Furthermore, both  of the cases cited by                        ________          the Court in Cohen II are cases in which a suspect classification                       ________          was allowed because it  was judged benign, see id. at 901 (citing                                                     ___ ___          Metro  Broadcasting Inc.  v.  FCC, 497  U.S.  547 (1990)  (race);          ________________________      ___          Califano v. Webster, 430 U.S. 313 (1977) (sex)).          ________    _______                    Cohen  II's  assumption that  a  regulation slanted  in                    _________          favor of  women would be  permissible, Cohen II 991  F.2d at 901,                                                 ________          and   by  implication   that   the  same   regulation  would   be          impermissible if it favored men, was based on Metro Broadcasting,                                                        __________________          which  held   that  benign  race-based  action   by  the  federal          government  was subject  to  a lower  standard than  non-remedial          race-based action.    See Metro  Broadcasting, 497  U.S. at  564.                                ___ ___________________          Specifically, the Supreme Court announced that                      benign  race-conscious  measures mandated                      by    Congress    are    constitutionally                      permissible to the extent that they serve                                  _____________________________                      important governmental objectives  within                      _________________________________________                      the   power   of    Congress   and    are                      _________________________________________                      substantially  related to  achievement of                      _________________________________________                      those objectives.                      ________________          Id.  at  565  (emphasis  added).    Although  Metro  Broadcasting          ___                                           ___________________          explicitly discussed race-conscious rather  than gender-conscious                                         -82-                                         -82-          classifications,  we applied its standard in Cohen II.  See Cohen                                                       ________   ___ _____          II, 991 F.2d at 901.          __                    Since Cohen  II, however, Metro  Broadcasting has  been                          _________           ___________________          overruled, at  least in part.  See  Adarand Constr. Inc. v. Pena,                                         ___  ____________________    ____          ___ U.S. ___, ___, 115 S. Ct. 2097, 2111-12 (1995).  In  Adarand,                                                                   _______          the Supreme Court  held that  "all racial classifications  . .  .          must be analyzed under strict scrutiny."  Adarand, 115 S. Ct.  at                                                    _______          2113.   The Court in Adarand singled  out Metro Broadcasting as a                               _______              __________________          "significant  departure"  from  much  of  the   Equal  Protection          jurisprudence  that  had  come  before  it, in  part  because  it          suggested that "benign" government race-conscious classifications          should be treated less skeptically than others.  See Adarand, 115                                                           ___ _______          S. Ct. at 2112.                    In Adarand,  the Supreme  Court reasoned that  "'it may                       _______          not  always be  clear  that a  so-called  preference is  in  fact          benign.'"   Id. (quoting Regents  of Univ. of  Cal. v. Bakke, 438                      ___          __________________________    _____          U.S. 265  (1978)  (opinion of  Powell, J.)).   Additionally,  the          Supreme Court endorsed the view that                    [a]bsent searching judicial inquiry  into the                    justification  for such  race-based measures,                    there is  simply no  way of  determining what                    classifications  are  'benign' or  'remedial'                    and   what   classifications   are  in   fact                    motivated by illegitimate  notions of  racial                    inferiority or simple racial politics.          Id. at  2112; see also Richmond v. J.A. Croson Co., 488 U.S. 469,          ___           ________ ________    _______________          493 (1989).                                         -83-                                         -83-                    It  is not necessary to  equate race and  gender to see          that the  logic of  Adarand --  counseling that we  focus on  the                              _______          categories and  justifications proffered rather  than the  labels          attached -- applies in the context of gender.  While cognizant of          differences   between   race-focused  and   gender-focused  Equal          Protection precedent,  I nevertheless think that  Adarand compels                                                            _______          us  to  view  so-called  "benign"  gender-conscious  governmental          actions  under  the  same  lens  as  any  other  gender-conscious          governmental actions.  See Adarand, 115 S. Ct.  at 2112; see also                                 ___ _______                       ________          United  States  v. Virginia,  116  S.Ct 2264,  2274,  2277 (1996)          ___________________________          (viewing   Virginia's   benign   justification   for   a   gender          classification  skeptically);  Shuford  v. Alabama  State  Bd. of                                         _______     ______________________          Educ., 897  F. Supp.  1535, 1557   (D. Ala.  1995) (stating  that          _____          courts  "must look behind the  recitation of a  benign purpose to          ensure    that    sex-based    classifications    redress    past          discrimination").   Rather than  conduct an inquiry  into whether          Title  IX  and  its  resulting interpretations  are  "benign"  or          "remedial," and conscious of the fact that labels can be used  to          hide illegitimate notions of  inferiority or simple politics just          as easily in the context  of gender as in the context of race, we          should now follow Adarand's lead and subject all gender-conscious                            _______          government action to the same inquiry.25                                            ____________________            25.  Our  discussion  in  Cohen  II also  cited  Califano  v.                                      _________              ________            Webster, 430 U.S. 313  (1977), which has not  been explicitly            _______            overruled.   That case  concerned Congress'  provision, under            the Social Security Act, for a lower retirement age for women            than  for men,  with the  result that,  as  between similarly                                         -84-                                         -84-                    B.   United States v. Virginia                    B.   United States v. Virginia                         _____________    ________                    A  second Supreme Court case has also made it necessary          to  review  our decision  in  Cohen  II.    In United  States  v.                                        _________        ______________          Virginia,  116  S.Ct.  2264  (1996),  the  Court  faced  an Equal          ________          Protection challenge  to Virginia's  practice of maintaining  the          Virginia  Military Institute as an all  male institution.  Rather          than  simply apply  the  traditional test  requiring that  gender          classifications   be  "substantially  related   to  an  important          government objective," Clark v.  Jeter 486 U.S. 456, 461  (1988),                                 _____     _____          the Supreme Court applied a more searching "skeptical scrutiny of          official action  denying rights  or opportunities based  on sex,"          id., at 2274, which  requires that "[p]arties who seek  to defend          ___          gender-based government action  must demonstrate an  'exceedingly          persuasive  justification'   for  that  action,"  id.     In  its                                                            ___          discussion,  the  Court stated  that, in  order  to prevail  in a          gender  case, "the State must  show at least  that the challenged                                              ________                                            ____________________            situated male and female wage-earners, the female wage-earner            would be awarded higher monthly social security payments, id.                                                                      ___            at 314-16.   In that  case, Congress specifically  found that            more  frequent and  lower age  limits were  being applied  to            women than to men in the labor market.  Id. at 319.  This led                                                    ___            the  Supreme Court to characterize the  provision at issue as            remedial rather  than benign,  noting that the  provision had            been  repealed  in   1972,  roughly  contemporaneously   with            "congressional  [anti-discrimination] reforms  [that]  . .  .            have  lessened  the  economic   justification  for  the  more            favorable benefit computation" for  women.  Id. at 320.   The                                                        ___            instant case  should be  distinguished from Califano  for two                                                        ________            reasons.  First, Califano did  not necessarily rule on benign                             ________            classifications,  as Metro  Broadcasting and  Adarand clearly                                 ___________________      _______            did.  Second, Califano, unlike the instant case, contained an                          ________            "exceedingly  persuasive  justification"   for  its   gender-            conscious state action.                                         -85-                                         -85-          classification  serves important governmental objectives and that          the  discriminatory means employed  are substantially  related to          the  achievement of  those objectives."   Id.  at 2275  (internal                                                    ___          quotations  omitted)  (emphasis  added).    Being  "substantially          related  to  an  important government  objective,"  therefore, is          considered  a necessary but not sufficient  condition.  The Court          also requires a  focus on "whether the proffered justification is          "exceedingly persuasive."  Id.                                     ___                    Virginia   "drastically   revise[d]   our   established                    ________          standards for reviewing sex-based  classifications."  Id. at 2291                                                                ___          (Scalia, J. dissenting).  "Although the Court in two places . . .          asks whether  the State has demonstrated  that the classification          serves   important   governmental   objectives   and   that   the          discriminatory means  employed are  substantially related  to the          achievement of those objectives . . . the Court never answers the          question presented  in anything  resembling that  form."  Id.  at                                                                    ___          2294  (citations omitted).   "[T]he  Court proceeds  to interpret          'exceedingly   persuasive  justification'   in  a   fashion  that          contradicts  the reasoning  of Hogan  and our  other precedents."                                         _____          Id.          ___                    What is important for our  purposes is that the Supreme          Court  appears  to  have  elevated  the  test  applicable  to sex          discrimination  cases  to  require  an   "exceedingly  persuasive          justification."   This is evident  from the language  of both the          majority opinion and the dissent in Virginia.                                              ________                                         -86-                                         -86-                    This  is  not  just  a  matter  of  semantics.    Metro                                                                      _____          Broadcasting,  and our application  of its  intermediate scrutiny          ____________          standard in Cohen II, omitted the additional "skeptical scrutiny"                      ________          requirement  of an  "exceedingly  persuasive  justification"  for          gender-based government  action.  Compare Virginia,  116 S.Ct. at                                            _______ ________          2274 (citing J.E.B. v.  Alabama ex rel. T.B., 511 U.S.  127, 136-                       ______     _______ _______ ____          37, and n.6 (1994)),  and Mississippi Univ. for Women  v. Holden,                                    ___________________________     ______          458  U.S. 718, 724 (1982),  with Metro Broadcasting,  497 U.S. at                                      ____ __________________          564-65.                    I conclude,  therefore, that Adarand  and Virginia  are                                                 _______      ________          irreconcilable with the analysis in Cohen II and, accordingly, we                                              ________          must follow the  guidance of  the Supreme Court  in this  appeal.          Under the new standards  established in those cases, Cohen  II is                                                               _________          flawed both because it applies  a lenient version of intermediate          scrutiny that  is impermissible following Adarand  and because it                                                    _______          did not apply the  "exceedingly persuasive justification" test of          Virginia.    We  must,  as  Brown  urges,   reexamine  the  Equal          ________          Protection challenge  to the  three-prong test as  interpreted by          the district court.                    C. Preliminary Injunction                    C. Preliminary Injunction                    In addition  to the  above reasons for  considering the          merits of this appeal, it is important to note that  Cohen II was                                                               ________          an appeal from a  preliminary injunction.  "When an  appeal comes          to  us in that posture,  the appellate court's  conclusions as to          the merits of  the issues presented on preliminary injunction are                                         -87-                                         -87-          to be understood as statements of  probable outcomes, rather than          as comprising the ultimate law of the case."  A.M. Capen s Co. v.                                                        ________________          American Trading and Prod. Co., 74  F.3d 317, 322 (1st Cir. 1996)          ______________________________          (internal  quotations omitted);  see  also  Narrangansett  Indian                                           _________  _____________________          Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991).          _____    ________                    The  binding  authority  of  Cohen  II,  therefore,  is                                                 _________          lessened  by the fact  that it was  an appeal from  a preliminary          injunction.  First, we now have a full record before us and a set          of  well-defined  legal  questions  presented  by the  appellant.          Trial  on the merits has  served to focus  these questions and to          provide  background that allows us to consider these questions in          the proper context  and in detail.  In its  decision in Cohen II,                                                                  ________          this court  recognized and, indeed, emphasized the  fact that its          holding was  only preliminary.   Cohen  II, 991  F.2d at  902 ("a                                           _________          party losing the battle on likelihood of success  may nonetheless          win the war  at a succeeding trial").   Rather than  turning that          ruling into a  permanent one,  we should review  the question  in          light of the full set of facts now available.                    Second, the standard of review has  changed.  The Cohen                                                                      _____          II  court stated that it  was adopting a  deferential standard of          __          review, and that "if . . . the district court made no clear error          of law  or fact, we will overturn its calibration  . . . only for          manifest abuse  of discretion."  Id. at 902.  The test applied by                                           ___          the court was based  on "(1) the movant's probability  of victory          on  the merits;  (2) the  potential for  irreparable harm  if the                                         -88-                                         -88-          injunction is refused;  (3) the balance  of interests as  between          the parties . . . and (4) the public interest."  Id.  The case is                                                           ___          now before  us on appeal  from the merits  and we must  review it          accordingly.  For  the purposes  of this appeal,  we must  review          findings of  fact under  a clearly  erroneous standard,  Reich v.                                                                   _____          Newspapers of New  England, Inc.,  44 F.3d 1060,  1069 (1st  Cir.          ________________________________          1995)  and findings of law de novo, Portsmouth v. Schlesinger, 57                                     _______  __________    ___________          F.3d  12, 14 (1st Cir. 1995).   Because the standard has changed,          it  is conceivable that the  result of the  analysis will change,          making review appropriate.                        II. BROWN'S EQUAL PROTECTION CHALLENGE                        II. BROWN'S EQUAL PROTECTION CHALLENGE                    Appellees have  argued that  the three-prong test  does          not  create a  gender classification  because the  classification          applies to  both women and  men.   Although I agree  that by  its          words, the test would apply to men at institutions where they are          proportionately underrepresented in intercollegiate  athletics, I          cannot  accept  the  argument   that,  via  this  provision,  the          Government  does not classify its citizens by gender.  See United                                                                 ___ ______          States v. Virginia, ___ U.S. ___, 116 S. Ct. 2264, 2274-76 (1996)          ______    ________          (applying Equal  Protection  review to  "gender-based  government          action" where Commonwealth of  Virginia attempted to maintain two          purportedly  equal  single-sex  institutions).    Cf.  Loving  v.                                                            ___  ______          Virginia,  388 U.S. 1, 8-9  (1967) (stating that  even though the          ________          statute  at issue applied equally to  members of different racial          classifications,   it   still   implicated   race-related   Equal                                         -89-                                         -89-          Protection  concerns,  since the  statute itself  contained race-          conscious   classifications).    The   fact  of  gender-conscious          classification, even with equal  enforcement with respect to both          genders, requires  the application of a higher  level of scrutiny          than  rational  basis   review.    We  cannot   pretend  that  an          interpretation of a statute that contains explicit categorization          according  to gender  and that  has intentional  gender-conscious          effect does not represent  gender-based government action.  Equal          Protection  is   implicated  where  the  claim  is  made  that  a          classification made  by the government  intentionally subjects an          individual   to  treatment  different   from  similarly  situated          individuals  based on  an impermissible  characteristic,  such as          race, national  origin, or gender.   Ronald D. Rotunda  & John E.          Nowak, 3  Treatise on Constitutional Law    18.2, at 7-8  (2d ed.                    ______________________________          1992).                    A.   The  District Court's  Construction of  the Three-                         The  District Court's  Construction of  the Three-                         Prong Test                         Prong Test                      1. Prong One                      1. Prong One                    A central issue  in this  case is the  manner in  which          athletic  "participation opportunities" are  counted.  During the          1990-91  academic year,  Brown fielded  16 men s  and  15 women s          varsity teams on  which 566 men and  328 women participated.   By          the 1993-94 year, there were 12 university-funded men s teams and          13 university funded women s teams.  These teams included 479 men          and 312 women.   Based  on an analysis  of membership in  varsity          teams,  the  district  court   concluded  that  there  existed  a                                         -90-                                         -90-          disparity   between   female  participation   in  intercollegiate          athletics and female student enrollment.                    Even assuming that membership numbers in varsity sports          is a  reasonable proxy for participation opportunities  -- a view          with which I do not concur -- contact sports should be eliminated          from  the  calculus.   The regulation  at  34 C.F.R.    106.41(b)          (1995) provides that an academic institution may operate separate          teams  for members of each sex "where  selection of such teams is          based  upon  competitive  skill or  the  activity  involved  is a          contact sport."  34 C.F.R.   106.41(b).  When a team is sponsored          only  for one sex, however, and where "athletic opportunities for          members  of that sex have previously been limited, members of the          excluded  sex must  be allowed  to try-out  for the  team offered          unless  the sport  involved is  a contact  sport," id.  (emphasis          ________________________________________________   ___          added).   The  regulation, therefore,  allows schools  to operate          single-sex  teams  in contact  sports.  In counting participation          opportunities,  therefore, it does  not make sense  to include in          the  calculus  athletes  participating  in  contact  sports  that          include only men s teams.   For example, if a  university chooses          to  sponsor a football  team, it is  permitted to  sponsor only a          men s team.   Not  all sports  are  the same  and the  university          should be given the flexibility to determine which activities are          most  beneficial  to  its student  body.    By  including in  its          accounting a  contact sport that  requires very large  numbers of          participants, e.g., football, the district court skews the number                                         -91-                                         -91-          of  athletic  participants  --   making  it  impossible  for  the          university to  provide  both men's  and  women's teams  in  other          sports.                    If  the  athletes competing  in  sports  for which  the          university is  permitted to  field single-sex teams  are excluded          from the  calculation of  participation rates, the  proportion of          women  participants would  increase  dramatically  and prong  one          might be  satisfied.  If so, the inquiry ends and Brown should be          judged to be in compliance.                      2. Prong Two                      2. Prong Two                    The  district court concluded, and the majority appears          to  agree, that Brown failed to satisfy prong two because "merely          reducing program offerings to the overrepresented gender does not          constitute  program expansion  for the  underrepresented gender."          Majority Opinion at  18.  This  is a curious  result because  the          entire three-prong test is based on relative participation rates.                                              ________          Prong one, for example, requires that participation opportunities          be provided  proportionately to enrollment, but  does not mandate          any absolute number of such opportunities.   The district court s          conclusion with  respect to  prong two, however,  implies that  a          school  must not only demonstrate that the proportion of women in          their program  is growing over time,  it must also show  that the          absolute number of women participating is increasing.26          ________                                            ____________________            26.  This  requirement presents  a  dilemma for  a school  in            which  women  are  less  interested in  athletics,  as  Brown            contends is the case.  Under such conditions, a school may be                                         -92-                                         -92-                    Under  the  district court's  interpretation,  a school          facing  budgetary constraints must, in order to comply with prong          two, increase the opportunities available to the underrepresented               ________          gender,  even  if  it  cannot  afford  to  do  so.   Rather  than          respecting  the school s  right to  determine the  role athletics          will  play in the future --  including reducing the opportunities          available  to   the  formerly  overrepresented  gender to  ensure          proportionate  opportunities  --  the  district   court  and  the          majority  demand  that  the  absolute  number   of  opportunities                                       ________          provided to the underrepresented  gender be increased.  I  see no          possible  justification for this interpretation -- the regulation          is  intended to  protect against  discrimination, not  to promote          athletics  on  college campuses.   A  school  is not  required to          sponsor an  athletic program of any  particular size.  It  is not          for the courts, or  the legislature, for that matter,  to mandate          programs of a given  size.  The most that can be demanded is that          athletics be provided in a non-discriminatory manner.                    Furthermore,  the  claim   that  a  reduction   in  the          opportunities  given   to  the   overrepresented  gender  is   an          unacceptable  method of  coming  into compliance  with the  three          prong test  is contrary  to both  Cohen  II and  comments of  the                                            _________          majority opinion.  The majority quotes approvingly from Cohen  v.                                                                  _____          Brown  Univ.,  879 F.  Supp. 185  (D.R.I.  1995) (Cohen  III), to          ____________                                      __________                                            ____________________            unable to  succeed under the  second prong because  there may            not  be  enough  interested  female  students  to  achieve  a            continuing increase in the number of female participants.                                         -93-                                         -93-          demonstrate the many  ways in  which a  university might  achieve          compliance:                      It  may  eliminate  its athletic  program                      altogether, it may elevate or  create the                      requisite number of women s positions, it                      may  demote  or  eliminate the  requisite                      number  of  men s  positions,  or  it may                      implement   a    combination   of   these                      remedies.          Majority Opinion at 70  (quoting Cohen III).  This  conclusion is                                           _________          consistent  with Cohen II, which states that a school may achieve                           ________          compliance  by  reducing  opportunities for  the  overrepresented          gender.  See Cohen II,  991 F.2d at 898 n.15.  I fail  to see how                   ___ ________          these  statements can  be reconciled  with  the claim  that Brown          cannot satisfy prong two by  reducing the number of participation          opportunities for men.                      3. Prong Three                      3. Prong Three                    Prong three of the  three-prong test states that, where          an institution does not comply with prongs one or two, compliance          will be assessed on the basis of                      whether it  can be demonstrated  that the                      interests and abilities of the members of                      th[e]  [proportionately underrepresented]                      sex  have  been  fully   and  effectively                      accommodated by the present program.          44 Fed. Reg. 71,413, 71,418 (December 11, 1979).                    According  to the  district  court,  Brown's  athletics          program   violates   prong   three   because   members   of   the          proportionately underrepresented sex  have demonstrated  interest          sufficient for a  university-funded varsity team  that is not  in                                         -94-                                         -94-          fact being funded.  The district court asserts that this is not a          quota.   Brown, on  the other  hand, argues that  prong three  is          satisfied  when (1) the interests and abilities of members of the          proportionately underrepresented gender  (2) are accommodated  to          the same degree as the proportionately overrepresented gender.                    The  district  court's  narrow, literal  interpretation          should  be  rejected  because  prong  three  cannot  be  read  in          isolation.   First,  as Brown  points  out, the  Regulation  that          includes prong three provides that, in assessing compliance under          the regulation, "the governing principle in this area is that the          athletic interests and  abilities of male and female  students be          _________________________________________________________________          equally  effectively accommodated."    Policy Interpretation,  44          _________________________________      _____________________          Fed.  Reg. 71,413, 71,414.  Thus, Brown contends, to meet "fully"          -- in  an absolute  sense --  the interests  and abilities  of an          underrepresented   gender,  while   unmet   interest  among   the          overrepresented  gender continues, would contravene the governing          principle of "equally effective accommodat[ion]" of the interests          and abilities of students of both genders.                    It  is   also  worthwhile  to  note   that  to  "fully"          accommodate the  interests and abilities of  the underrepresented          sex  is  an extraordinarily  high  --  perhaps impossibly  so  --          requirement.   How could an academic institution with a large and          diverse  student  body  ever  "fully"  accommodate  the  athletic          interests  of its  students?   Under  even  the largest  athletic          program,  it would  be surprising  to find  that there  is not  a                                         -95-                                         -95-          single student who would  prefer to participate in  athletics but          does not do so because the school does not offer a program in the          particular sport that interests the student.  To read fully in an          absolute sense would make the third prong virtually impossible to          satisfy and, therefore, an irrelevant addition to the test.                    This  difficulty  was  recognized in  Cohen  II,  which                                                          _________          stated  that "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."  Cohen II 991 F.2d at 898.  The balance that Cohen II                       ________                                    ________          advocates  would require the institution to ensure "participatory          opportunities  . .  .  when, and  to  the extent  that, there  is          sufficient interest and ability among the members of the excluded          sex to sustain a viable team."  Id. (internal citations omitted).                                          ___          This standard  may be practical  for certain sports  that require          large  teams, but what of  individual sports?   A "viable" tennis          team may require only a single player.  The same could be said of          any individual  sport, including golf, track  and field, cycling,          fencing,  archery, and  so  on.   Therefore,  we still  have  the          problem  that  to  "fully   accommodate"  the  interests  of  the          underrepresented sex may be impossible under the district court's          interpretation.                    In light of the above, Brown argues that prong three is          in  fact ambiguous with respect  to whether "fully"  means (1) an          institution must meet 100% of the underrepresented gender's unmet                                         -96-                                         -96-          reasonable interest and ability, or (2)  an institution must meet          the  underrepresented  gender's  unmet  reasonable  interest  and          ability as fully as it meets those of the overrepresented gender.          I  agree  with  Brown  that,  in  the  context  of  OCR's  Policy          Interpretation, prong three is susceptible  to at least these two          plausible interpretations.                        Additionally, section 1681(a),  a provision enacted  by          Congress as part of  Title IX itself, casts doubt on the district          court's reading of prong three.   20 U.S.C.   1681(a) (1988).  As          Brown points out, Title IX, of which the Policy Interpretation is          an   administrative   interpretation,   contains  language   that          prohibits the ordering of preferential  treatment on the basis of          gender due  to a failure of a program to substantially mirror the          gender ratio  of an institution.   Specifically, with  respect to          Title  IX's guarantee  that no  person shall  be excluded  on the          basis  of sex from "participation  in, denied the  benefits of or          subjected  to  discrimination  under  any  education  program  or          activity receiving  Federal financial  assistance,"  20 U.S.C.             1681(a),                      [n]othing  contained  [therein] shall  be                      interpreted  to  require any  educational                      institution  to   grant  preferential  or                      disparate treatment to the members of one                      sex on account of an  imbalance which may                      exist with respect to the total number or                      percentage   of   persons   of  the   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.                                         -97-                                         -97-          Id.   1681(b).   Section 1681(b) provides yet another  reason why          ___          the  district court's reading  of prong three  is troublesome and          why Brown's reading is a reasonable alternative.                    Since  the applicable  regulation, 34 C.F.R.    106.41,          and  policy   interpretation,  44  Fed.  Reg.   71,418,  are  not          manifestly  contrary to the objectives of  Title IX, and Congress          has  specifically delegated  to an  agency the  responsibility to          articulate standards governing a  particular area, we must accord          the  ensuing regulation considerable  deference.  Chevron, U.S.A.                                                            _______________          v. Natural Resources  Defense Council,  Inc., 467  U.S. 837,  844             _________________________________________          (1984).   That notwithstanding, where -- as here -- the resulting          regulation   is   susceptible   to  more   than   one  reasonable          interpretation, we  owe no  such deference to  the interpretation          chosen where  the choice is  made not  by the agency  but by  the          district  court.    Therefore,  like  other  cases  of  statutory          interpretation, we should review  the district court's reading de                                                                         __          novo.          ____                    B.   The  District  Court's   Interpretation  and   the                    B.   The  District  Court's   Interpretation  and   the                         Resulting Equal Protection Problem                         Resulting Equal Protection Problem                    The  district court's interpretation  of prongs one and          three creates an Equal Protection problem, which I analyze in two          steps.   First,  the  district court's  interpretation creates  a          quota  scheme.   Second,  even assuming  such  a quota  scheme is          otherwise  constitutional,  appellees  have  not  pointed  to  an          "exceedingly  persuasive justification," see  Virginia, 116 S.Ct.                                                   ___  ________          at 2274, for this particular quota scheme.                                         -98-                                         -98-                      1. The Quota                      1. The Quota                    I  believe that the  three prong test,  as the district          court interprets  it, is a  quota.   I am in  square disagreement          with the majority, who believe that "[n]o aspect of the  Title IX          regime  at issue  in  this  case  .  .  .  mandates  gender-based          preferences or quotas."   Majority  Opinion at 29.   Put  another          way,  I agree  that  "Title  IX  is  not  an  affirmative  action          statute,"  id., but I believe  that is exactly  what the district                     ___          court has made of it.   As interpreted by the district court, the          test constitutes an affirmative action, quota-based scheme.                    I  am less interested  in the actual  term "quota" than          the legally cognizable characteristics that render a quota scheme          impermissible.   And  those characteristics  are present  here in          spades.  I  am not persuaded by the majority's  argument that the          three-part test does not  constitute a quota because it  does not          permit an agency or court to find a violation solely on the basis          of prong one of the test; instead,  an institution must also fail          prongs  two and  three.   As Brown  rightly argues,  the district          court's  application of  the three-prong  test requires  Brown to          allocate its athletic resources to meet the as-yet-unmet interest          of  a member  of the  underrepresented sex,  women in  this case,          while   simultaneously  neglecting   any  unmet   interest  among          individuals of the overrepresented  sex.  To the extent  that the          rate of interest in  athletics diverges between men and  women at          any   institution,  the  district  court's  interpretation  would                                         -99-                                         -99-          require  that  such  an  institution  treat  an  individual  male          student's  athletic interest and  an individual  female student's          athletic   interest   completely   differently:   one   student's          reasonable interest would have  to be met, by law,  while meeting                                                     ______          the other  student's interest  would only  aggravate the  lack of          proportionality  giving rise to the  legal duty.   "The injury in          cases  of  this kind  is  that  a 'discriminatory  classification          prevent[s] . . . competition on an equal footing.'"  Adarand, 115                                                               _______          S.  Ct. at  2104 (quoting  Northeast Fla. Chapter,  Assoc'd Gen'l                                     ______________________________________          Contractors  of  America  v.  Jacksonville,  508  U.S.  656,  666          ________________________      ____________          (1993)).   As a result, individual male and female students would          be  precluded  from  competing  against  each  other  for  scarce          resources;  they would  instead compete  only against  members of          their own gender.  Cf. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th                             ___ _______    _____          Cir.)  (concluding  that   not  only   would  government   action          precluding competition between individuals of different races for          law  school  admissions be  unconstitutional,  but  in fact  even          partial  consideration  of  race  among other  factors  would  be          unconstitutional), cert. denied, 116 S.Ct. 2581 (1996).27                             ____________                                            ____________________            27.  In response, appellees cite Kelley v. Board of Trustees,                                             ______    _________________            35 F.3d 265 271  (1994), for the proposition that  the three-            prong test does not  constitute a quota, because it  does not            "require any educational institution to grant preferential or            disparate treatment" to  the gender underrepresented  in that            institution's athletic program.  Id.  However, in Kelley, the                                             ___              ______            Seventh Circuit, unlike  the district court, did  not use the            three-prong test as a definitive test for liability.  Rather,            the Seventh Circuit endorsed the test as one  for compliance,            in dismissing  the plaintiff's  claims.  The  Seventh Circuit               ___________________________            did  not consider the question  of whether, had the defendant                                        -100-                                        -100-                    The   majority  claims   that   "neither   the   Policy          Interpretation nor  the  district court's  interpretation of  it,          mandates statistical  balancing."  Majority  Opinion at 41.   The          ________          logic of this position escapes me.  A school can satisfy the test          in  three ways.   The first prong  is met if  the school provides          participation  opportunities  for  male and  female  students  in          numbers substantially  proportionate to their enrollments.   This          prong surely requires statistical balancing.  The second prong is          satisfied if an institution that cannot meet prong one can show a          "continuing practice  of program expansion  which is demonstrably          responsive  to  the  developing  interest and  abilities  of  the          members  of the underrepresented sex."   44 Fed.  Reg. at 71,418.          It can  hardly be  denied  that this  prong requires  statistical          balancing as it is essentially a test that requires the school to          show that  it is moving in the  direction of satisfying the first          prong.  Establishing that a school is moving inexorably closer to          satisfying a  requirement that demands  statistical balancing can          only be done by  demonstrating an improvement in the  statistical          balance.    In  other  words,  the  second  prong  also  requires          balancing.  Finally, the third prong, interpreted as the majority          advocates, dispenses  with statistical balancing only  because it                                            ____________________            University  of  Illinois  not  been in  compliance,  lack  of                                      ___            compliance  with  the three-prong  test  alone  would trigger                                                     _____            automatic liability,  nor did  the Seventh Circuit  spell out            what steps would  have been  required of defendant.   At  any            rate,  Kelley  pre-dates  the  Supreme  Court's  opinions  in                   ______            Adarand and Virginia,  meaning that it suffers from  the same            _______     ________            defects as Cohen II.                       ________                                        -101-                                        -101-          choose to accord zero weight to one side of the  balance.  Even a          single  person   with   a  reasonable   unmet  interest   defeats          compliance.    This standard,  in  fact,  goes farther  than  the          straightforward  quota test  of  prong  one.   According  to  the          district court,  the unmet interests of  the underrepresented sex          must be completely accommodated before any of the interest of the                  __________                     ___          overrepresented gender can be accommodated.28                    A pragmatic  overview of the effect  of the three-prong          test leads me to reject the majority's claim that the three-prong          test  does not  amount to  a quota  because it  involves multiple          prongs.  In  my view it  is the result of  the test, and  not the          number of steps involved, that should determine if a quota system          exists.   Regardless  of how  many steps  are involved,  the fact          remains  that  the  test  requires   proportionate  participation          opportunities for both sexes (prong one) unless one sex is simply          not  interested in participating (prong  three).  It  seems to me          that a quota with an exception for  situations in which there are                                            ____________________            28.  The  problem  with   the  majority s  argument   can  be            illustrated  with  a hypothetical  college  admissions policy            that would require proportionality  between the gender  ratio            of the  local student  aged population and  that of  admitted            students.   This  policy is  comparable to  prong one  of the            three prong test and is, without a doubt, a quota.   It is no            less  a quota if an exception exists for schools whose gender            ratio  differs from  that of the  local population  but which            admit  every applicant  of the  underrepresented gender.   It            remains a quota because  the school is forced to  admit every            female  applicant until it  reaches the requisite proportion.            Similarly, the  district court's interpretation  requires the            school to  accommodate the interests of  every female student            until proportionality is reached.                                        -102-                                        -102-          insufficient interested students to  allow the school to  meet it          remains  a  quota.    All of  the  negative  effects  of a  quota          remain,29 and the school  can escape the quota under  prong three          only  by offering  preferential treatment to  the group  that has          demonstrated less interest in athletics.                      2. "Extremely Persuasive Justification" Test                      2. "Extremely Persuasive Justification" Test                    In view  of the  quota scheme  adopted by the  district          court, and Congress' specific disavowal of any  intent to require          quotas as part of Title  IX, appellees have not met their  burden          of  showing an  "exceedingly  persuasive justification"  for this          gender-conscious exercise of  government authority.   As recently          set forth in Virginia, "[p]arties who seek to defend gender-based                       ________          government  action  must demonstrate  an  'exceedingly persuasive          justification' for that action."  Virginia, 116 S.Ct. at 2274.                                            ________          While the Supreme Court in Virginia acknowledged that "[p]hysical                                     ________          differences between  men and  women . .  . are enduring,"  id. at                                                                     ___          2276,  it went on  to state  that such  "'[i]nherent differences'          between men and women,  we have come to appreciate,  remain cause          for  celebration, but not for . .  . artificial constraints on an          individual's opportunity." Id.                                     ___                                            ____________________            29.  Nor  does the  second  prong  of  the  test  change  the            analysis.  That prong merely recognizes that a school may not            be able  to  meet the  quotas  of the  first or  third  prong            immediately,  and  therefore  deems  it  sufficient  to  show            program  expansion that is responsive to the interests of the            underrepresented sex.                                        -103-                                        -103-                    Neither   appellees   nor  the   district   court  have          demonstrated  an "exceedingly  persuasive justification"  for the          government action  that the district  court has directed  in this          case.    In  fact,   appellees  have  failed  to  point   to  any                                                                        ___          congressional  statement or  indication  of  intent  regarding  a          proportional  representation scheme  as applied  by the  district          court.   While  they  point to  Congress'  decision  to  delegate          authority to the  relevant agencies,  this does not  amount to  a          genuine  --  that is,  not hypothesized  or  invented in  view of          litigation, id.  at 2275 --  exceedingly persuasive justification                      ___          in light of section 1681(b)'s "no  quota" provision.  We are left          with  the explanations discussed in  Cohen II to  the effect that                                               ________          Congress  conducted hearings  on  the  subject of  discrimination          against  women in  education.   There is  little more  than that,          because Congress  adopted Title IX  as a floor  amendment without          committee hearings or reports.  See Cohen II, 991 F.2d at 893.                                          ___ ________                    I believe  that the district  court's interpretation of          the  Policy  Interpretation's   three-prong  test  poses  serious          constitutional  difficulties.   "[W]here an  otherwise acceptable          construction  of a  statute  would  raise serious  constitutional          problems, [we] construe the statute to avoid such problems unless          such construction is plainly contrary to the intent of Congress."          Edward J. DeBartolo Corp.  v. Florida Gulf Coast Bldg.  & Constr.          _________________________     ___________________________________          Trades  Council, 485 U.S. 568 (1988); see NLRB v. Catholic Bishop          _______________                       ___ ____    _______________          of  Chicago, 440  U.S.  490,  507 (1979).    To  the extent  that          ___________                                        -104-                                        -104-          Congress  expressed a  specific  intent germane  to the  district          court's  interpretation,  Congress,  if  anything,  expressed  an          aversion to quotas as a method to enforce Title IX.  As a result,          I opt for Brown's construction of prong three, which, as  we have          discussed, infra, is also a reasonable reading.                     _____                    Accordingly,  I would  reverse and  remand for  further          proceedings.                               III. Evidentiary Issues                               III. Evidentiary Issues                    In  disputes  over  the  representation  of   women  in          athletic  programs, it  is  inevitable that  statistical evidence          will  be relevant.    There  is simply  no  other  way to  assess          participation  rates,   interest  levels,  and  abilities.    The          majority  opinion, however,  offers  inconsistent  guidance  with          respect to the role of  statistics in Title IX claims.   Early in          the opinion,  the majority  approvingly cites to  the statistical          evaluations conducted  in  Cohen  I, Cohen  II,  and  Cohen  III.                                     ________  _________        __________          Majority  Opinion at 8-10.   The figures  in question demonstrate          that women s participation in athletics is less than proportional          to their enrollment.   Later  in the opinion,  however, when  the          level  of interest among  women at Brown  is at  issue, the court          adopts  a   much  more  critical  attitude   towards  statistical          evidence: "[T]here exists the  danger that, rather than providing          a  true  measure  of  women s  interest  in  sports,  statistical          evidence purporting to reflect women s interest instead  provides          only a  measure of the very  discrimination that is and  has been                                        -105-                                        -105-          the  basis for women s lack of opportunity."  Majority Opinion at          53.   In other words, evidence of differential levels of interest          is not to be credited because it may simply reflect the result of          past discrimination.                    The  refusal to  accept surveys  of interest  levels as          evidence of interest raises the question of what indicators might          be used.  The majority offers no guidance to a  school seeking to          assess  the levels  of interest  of its  students.   Although the          three-prong  test, even  as  interpreted by  the district  court,          appears to  allow the school  the opportunity to  show a lack  of          interest, the majority rejects the best -- and perhaps the only -          - mechanism for making such a showing.                    Brown claims that the district court erred in excluding          evidence pertaining to the relative athletic interests of men and          women  at the  university.   Brown sought  to introduce  the NCAA          Gender Equity Study and  the results of an undergraduate  poll on          student  interest in athletics, but  was not permitted  to do so.          The majority is unsympathetic to Brown's claim that the disparity          between  athletic  opportunities  for  men and  women  reflect  a          gender-based  difference in  interest  levels.   Indeed,  despite          Brown's  attempt to present evidence in support of its claim, the          majority   characterizes   Brown's  argument   as   an  "unproven          assertion."  Majority Opinion at 51.30                                            ____________________            30.  Among  the   evidence  submitted   by  Brown   are:  (i)            admissions data showing greater athletic interest among  male            applicants than  female applicants;  (ii) college  board data                                        -106-                                        -106-                    Furthermore, the majority recognizes  that institutions          are  entitled  to  use  any  nondiscriminatory  method  of  their          choosing to determine athletic interests.  Majority Opinion at 53          n.15.  If  statistical evidence of  interest levels is not  to be          considered by courts,  however, there  is no way  for schools  to          determine whether they are in compliance.  Any studies or surveys          they might conduct in order to assess their own compliance would,          in  the event of litigation, be deemed irrelevant.  Regardless of          the  efforts made by the  academic institution, the  specter of a          lawsuit would be ever-present.                    In  addition, the majority has put the power to control          athletics and the provision of athletic resources in the hands of          the  underrepresented gender.   Virtually  every other  aspect of          college life is  entrusted to the institution,  but athletics has          now  been carved  out as an  exception and  the university  is no          longer in full  control of its program.   Unless the  two genders                                            ____________________            showing  greater  athletic interest  and  prior participation            rates by prospective male  applicants than female applicants;            (iii)  data  from  the  Cooperative   Institutional  Research            Program at UCLA  indicating greater  athletic interest  among            men  than women; (iv) an independent  telephone survey of 500            randomly  selected  Brown  undergraduates  that  reveals that            Brown offers  women participation opportunities in  excess of            their  representation in  the  pool of  interested, qualified            students; (v)  intramural and  club participation  rates that            demonstrate  higher participation rates among men than women;            (vi)  walk-on  and try-out  numbers  that  reflect a  greater            interest   among  men   than   women;   (vii)   high   school            participation  rates   that  show   a  much  lower   rate  of            participation among females than among males; (viii) the NCAA            Gender Equity  Committee data  showing that women  across the            country participate in athletics at a lower rate than men.                                        -107-                                        -107-          participate equally in athletics, members of the underrepresented          sex would  have the ability to demand a varsity level team at any          time  if they can show sufficient interest.  Apparently no weight          is given  to the sustainability of the  interest, the cost of the          sport, the  university s view on  the desirability of  the sport,          and so on.                              IV. FIRST AMENDMENT ISSUE                              IV. FIRST AMENDMENT ISSUE                    Finally,  it  is  important  to   remember  that  Brown          University  is  a  private  institution  with a  constitutionally          protected  First  Amendment  right  to  choose  its   curriculum.          Athletics  are part of that curriculum.  Although the protections          of the First Amendment cannot  be used to justify discrimination,          this  court should  not forget that  it has  a duty  to protect a          private  institution s   right  to  mould  its   own  educational          environment.                    The majority pays  lip service to these concerns in the          final pages of its long opinion, stating  that " we are a society          that  cherishes academic freedom and recognizes that universities          deserve great leeway in their operations. "   Majority Opinion at          69  (quoting Cohen II,  991 F.2d at 906),  and "[o]ur respect for                       ________          academic freedom  and reluctance to interject  ourselves into the          conduct of university affairs  counsels that we give universities          as  much freedom as possible."   Majority Opinion at 75.  Despite          these statements, however, the majority in its opinion today, and          the  district  court   before  it,  have  failed  to  give  Brown                                        -108-                                        -108-          University  freedom  to craft  its  own athletic  program  and to          choose  the  priorities of  that  program.    Instead, they  have          established a  legal rule that  straightjackets college athletics          programs by curtailing  their freedom to  choose the sports  they          offer.                                         -109-                                        -109-
