Brown University News Bureau

The Brown University News Bureau

Mark Nickel, Director

This is the full text of the majority opinion issued November 21, 1996, by the U.S. Court of Appeals for the First Circuit. Brown University had appealed a District Court ruling in Cohen v. Brown. A dissent was also issued. (See news release 96-050.)
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 95-2205

AMY COHEN, ET AL.,
Plaintiffs - Appellees,

v.

BROWN UNIVERSITY, ET AL.,
Defendants - Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________


Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.
_____________________

Joan A. Lukey and Walter B. Connolly, Jr., with whom Hale
and Dorr, Alison B. Marshall, Miller, Canfield, Paddock & Stone,
Beverly E. Ledbetter, General Counsel, Brown University, Julius
C. Michaelson, Jeffrey S. Michaelson and Michaelson & Michaelson
were on brief for appellants.

Martin Michaelson, with whom Amy Folsom Kett, Suzanne M.
Bonnet, Hogan & Hartson L.L.P. and Sheldon E. Steinbach, General
Counsel, American Council on Education, were on brief for
American Council on Education, Association of American
Universities, National Association of Independent Colleges and
Universities, and National Association of State Universities and
Land-Grant Colleges, amici curiae.

George A. Davidson, Carla A. Kerr, Seth D. Rothman and
Hughes Hubbard & Reed on brief for Baylor University, Boston
University, Colgate University, College of the Holy Cross,
Colorado State University, Fairfield University, George
Washington University, John Hopkins University, Lafayette
College, New York University, Saint Peter's College, Southern
Methodist University, Tulane University, University of Arkansas,
University of Nebraska, University of Notre Dame, and Wake Forest
University, amici curiae.

Melinda Ledden Sidak and Anita K. Blair on brief for The
Independent Women's Forum, amicus curiae.

Stephen S. Ostrach, Todd S. Brilliant and New England Legal
Foundation on brief for American Baseball Coaches Association,
College Swim Coaches Association of America, National Wrestling
Coaching Association and United States Water Polo, amici curiae.
Lynette Labinger, with whom Roney & Labinger, Amato A.
DeLuca, DeLuca & Weizenbaum, Ltd., Raymond Marcaccio, Blish &
Cavanagh, Sandra L. Duggan, Sandra L. Duggan, Esq., P.C., Arthur
H. Bryant, Leslie A. Brueckner, and Trial Lawyers for Public
Justice, P.C. were on brief for appellees.

Deborah L. Brake, with whom Marcia D. Greenberger, Judith C.
Appelbaum and National Women's Law Center were on brief for
National Women's Law Center, American Association of University
Women/AAUW Legal Advocacy Fund, American Civil Liberties Union
Women's Rights Project, California Women's Law Center, Center For
Women Policy Studies, Connecticut Women's Education and Legal
Fund, Equal Rights Advocates, Feminist Majority Foundation, Girls
Incorporated, National Association for Girls and Women in Sport,
National Association for Women in Education, National Coalition
for Sex Equity in Education, National Commission on Working
Women, National Council of Administrative Women in Education,
National Education Association, National Organization for Women
Foundation, Now Legal Defense and Education Fund, National
Softball Coaches Association, Northwest Women's Law Center,
Parents for Title IX, Rhode Island Affiliate American Civil
Liberties Union, Women Employed, Women's Basketball Coaches
Association, Women's Law Project, Women's Legal Defense Fund,
Women's Sports Foundation, and YWCA of the USA, amici curiae.

Deval L. Patrick, Assistant Attorney General, Isabelle Katz
Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey and
Lisa W. Edwards, Attorneys, Department of Justice, on brief for
the United States, amicus curiae.

____________________

November 21, 1996
____________________

BOWNES, Senior Circuit Judge.

This is a class 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 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
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
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. 

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.

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 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 commnsurate 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
schedules (3) 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 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 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
undergraduatestudents competing on these teams, 63.3% (566) were
men and36.7% (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 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 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," id., 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," id., 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 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.

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. 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 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 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 
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.

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
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 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." Cohen III, 879 F.
Supp. at 203 n.36. 

The district court concluded that intercollegiate athletics
opportunities "means real opportunities, not illusory ones, and
therefore should be measured by counting actual participants."
Id. at 204 (internal quotation marks and citations omitted). 

Title IX is an anti-discrimination statute, modeled after Title
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d ("Title
VI").(8) See Cannon, 441 U.S. at 696 ("The drafters of Title IX
explicitly assumed that it would be interpreted and applied as
Title VI had been during the preceding eight years."). Thus,
Title IX and Title VI share the same constitutional
underpinnings. See Jeffrey H. Orleans, An End To The Odyssey:
Equal Athletic Opportunities For Women, 3 Duke J. Gender L. &
Pol'y 131, 133-34 (1996).

Although the statute itself provides for no remedies beyond the
termination of federal funding, the Supreme Court has determined
that Title IX is enforceable through an implied private right of
action, Cannon, 441 U.S. at 703, and that damages are available
for an action brought under Title IX, Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60, 76 (1992). The right to injunctive relief
under Title IX appears to have been impliedly accepted by the
Supreme Court in Franklin. Id. at 64-66, 71-73. In addition, a
majority of the Court in Guardians 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.

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
case once those issues have been decided. See 1B James W. Moore
et al., Moore's Federal Practice 0.404[1] (2d ed. 1993)
(hereinafter "Moore"). "The doctrine of the law of the case
directs that a decision of an appellate court on an issue of law,
unless vacated or set aside, governs the issue during all
subsequent stages of litigation in the nisi prius court and
thereafter on any further appeal." Commercial Union Ins. Co. v.
Walbrook Ins. Co., 41 F.3d 764, 769 (1st. Cir. 1994) (citing
United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert.
denied, 502 U.S. 862 (1991)). The reviewing court's mandate
"constitutes the law of the case on such issues of law as were
actually considered and decided by the appellate court, or as
were necessarily inferred from the disposition on appeal."
Commercial Union Ins. Co., 41 F.3d at 770 (citing 1B Moore at 
0.404[10]). The doctrine requires a trial court on remand to
dispose of the case in accordance with the appellate court's
mandate by implementing "'both the letter and the spirit of the
mandate, taking into account the appellate court's opinion and
the circumstances it embraces,'" United States v. Connell, 6 F.3d
27, 30 (1st Cir. 1993) (quoting United States v. Kikumura, 947
F.2d 72, 76 (3d Cir. 1991)), and binds newly constituted panels
to prior panel decisions on point, e.g., Irving v. United States,
49 F.3d 830, 833-34 (1st Cir. 1995); Metcalf & Eddy, Inc. v.
Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935, 939 n.3 (1st
Cir. 1993). 

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 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) 

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 emphasize 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-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
contrary to the law enunciated in Cohen II (which it clearly is
not). Finding Brown's mere 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.

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
already been litigated and decided adversely to Brown in the
prior appeal. 

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 voluntary(10) 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, 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 laborforce); 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).

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 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


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
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
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.

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
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
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). 

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.

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.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
intercollegiate varsity athletics at Brown and the percentage of
women in Brown's undergraduate student body. 

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
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 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.

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 (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
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
to 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 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. Cf. 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 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 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.

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
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"). 

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-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 athletics 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. 

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 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 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.

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 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. 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 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 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 in varsity competition, no such
difficulty 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
institution is expected to meet the actual interests and
abilities of its students and admitted students."). Under these
circumstances, the district court's finding that there are
interested women able to compete at the university-funded varsity
level, Cohen III, 879 F. Supp. at 212, is clearly correct.

Finally, the tremendous growth in women's
participation in sports since Title IX was enacted disproves
Brown's argument that women are less interested in sports for
reasons unrelated to lack of opportunity. See, e.g., Mike Tharp
et al., Sports crazy! Ready, set, go. Why we love our games,
U.S. News & World Report, July 15, 1996, at 33-34 (attributing to
Title IX the explosive growth of women's participation in sports
and the debunking of "the traditional myth that women aren't
interested in sports").

Brown's relative interests approach is not a reasonable
interpretation of the three-part test. This approach
contravenes the purpose of the statute and the regulation because
it does not permit an institution or a district court to remedy a
gender-based disparity in athletics participation opportunities.
Instead, this approach freezes that disparity by law, thereby
disadvantaging further the underrepresented gender. Had Congress
intended to entrench, rather than change, the status quo -- with
its historical emphasis on men's participation opportunities to
the detriment of women's opportunities -- it need not have gone
to all the trouble of enacting Title IX.

                                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.

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 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 (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 (1989), 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
Fullilove(18) that race-conscious classifications adopted by
Congress to address racial and ethnic discrimination are subject
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.

The prior panel rejected Brown's Fifth Amendment
equal protection(20) and "affirmative action" challenges to the
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
relying on Frontiero, 411 U.S. 677 (1973), and Croson, 488 U.S.
469 (1989), 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
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)

Fourth, it is important to recognize that controlling
authority does not distinguish between invidious and benign
discrimination in the context of gender-based classifications, as
it has in the context of racial classifications. Neither this
court nor the Supreme Court has drawn this distinction in the
context of gender discrimination claims or held that a less
stringent standard applies in cases involving benign, rather than
invidious, gender discrimination. See Hogan, 458 U.S. at 724 &
n.9 (reviewing benign gender-conscious admissions policy under
intermediate scrutiny and recognizing that the analysis does not
change with the objective of the classification); accord Wygant,
476 U.S. at 273. Thus, the analytical result would be same, even
if this were an affirmative action case.

Under intermediate scrutiny, the burden of demonstrating an
exceedingly persuasive justification for a government-imposed,
gender-conscious classification is met by showing that the
classification serves important governmental objectives, and that
the means employed are substantially 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 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. 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)
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.

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 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 relied upon the
excluded data in providing their opinions on the issue of a 
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.

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.
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:

     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 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
     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.
     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.

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.

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.

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. 

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
further proceedings. No costs on appeal to either party.

FOOTNOTES

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. 

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.

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.

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.

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 then 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). 

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." 

8. Title VI prohibits discrimination on the basis of race,
color, or national origin in institutions benefitting from
federal funds. 

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
"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.

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). 

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. 

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.

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. 

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.

15. Under the Policy Interpretation,

     Institutions may determine the athletic
     interests and abilities of students by
     nondiscriminatory methods of their
     choosing provided:
     a. The processes take into
     account the nationally
     increasing levels of women's
     interests and abilities;
     b. The methods of
     determining interest and
     ability do not disadvantage the
     members of an underrepresented
     sex;
     c. The methods of
     determining ability take into
     account team performance
     records; and
     d. The methods are
     responsive to the expressed
     interests of students capable
     of intercollegiate competition
     who are members of an
     underrepresented sex.

44 Fed. Reg. at 71,417.

The 1990 version of the Title IX Athletics Investigator's Manual,
an internal agency document, instructs investigating officials to
consider, inter alia, the following: (i) any institutional
surveys or assessments of students' athletics interests and
abilities, see Valerie M. Bonnette & Lamar Daniel, Department of
Education, Title IX Athletics Investigator's Manual at 22 (1990);
(ii) the "expressed interests" of the underrepresented gender,
id. at 25; (iii) other programs indicative of interests and
abilities, such as club and intramural sports, sports
programs at "feeder" schools, community and regional sports
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.) 

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. 

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
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. 

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. 

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
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). 

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. 

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 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 merely 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). 

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. 

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).