

                  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 &amp; Stone,                                                                          
Beverly E.  Ledbetter, General Counsel, Brown  University, Julius                                                                           
C. Michaelson, Jeffrey S.  Michaelson and Michaelson &amp; Michaelson                                                                           
were on brief for appellants.
     Martin  Michaelson, with  whom Amy  Folsom Kett,  Suzanne M.                                                                           
Bonnet, Hogan &amp; 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 &amp;  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  &amp;  Labinger, Amato  A.                                                                           
DeLuca,  DeLuca &amp;  Weizenbaum, Ltd.,  Raymond Marcaccio,  Blish &amp;                                                                           
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.  &amp;                                                 

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 &amp;  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 &amp;  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 &amp; 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 &amp;                                                       

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 &amp; 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 &amp; 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  &amp; 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.  &amp; 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-
