Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants, 101 F.3d 155

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 /”). 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, 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 ease 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. 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 commensurate with their abilities and that these athletes operate at a competitive disadvantage in comparison to university-funded varsity athletes. Id. at 189. For example, the district court found that some schools are reluctant to include donor-funded teams in their varsity schedules 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 injunction hearing, the district court found that, in the academic year 1990-91, Brown funded 31 intercollegiate varsity teams, 16 men’s teams and 15 women’s teams, Cohen I, 809 F.Supp. at 980, and that, of the 894 undergraduate students competing on these teams, 63.3% (566) were men and 36.7% (328) were women, id. at 981. During the same academic year, Brown’s undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. Id.

The district court also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men’s varsity teams were established before 1927, virtually all of the women’s 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 “[although the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes,” id. at 189.

In computing these figures, the district court counted as participants in intercollegiate athletics for purposes of Title IX analysis those athletes who were members of varsity teams for the majority of the last complete season. Id. at 192. Brown argued at trial that “there is no consistent measure of actual participation rates because team size varies throughout the athletic season,” and that “there is no consistent measure of actual participation rates because there are alternative

definitions of ‘participant’ that yield very different participation totals.” Id. Reasoning that “[wjhere both the athlete and coach determine that there is a place on the team for a student, it is not for this Court to second-guess their judgment and impose its own, or anyone else’s, definition of a valuable or genuine varsity experience,” the district court concluded that “[ejvery 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. 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 IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution’s student constituency, on the one hand, and its athletic programs, on the other hand.” Id. at 895.

Congress enacted Title IX in response to its finding — after extensive hearings held in 1970 by the House Special Subcommittee on Education — of pervasive discrimination against women with respect to educational opportunities. 118 Cong.Ree. 5804 (1972) (remarks of Sen. Bayh); North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523 n. 13, 102 S.Ct. 1912, 1919 n. 13, 72 L.Ed.2d 299 (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, 99 S.Ct. 1946, 1961, 60 L.Ed.2d 560 (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”). 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). 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. (

e) 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, which inquires as follows:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective én-rollments; 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”). See Cannon, 441 U.S. at 696, 99 S.Ct. at 1967 (“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, 99 S.Ct. at 1961, and that damages are available for an action brought under Title IX, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 1038, 117 L.Ed.2d 208 (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, 112 S.Ct. at 1031-33, 1035-37.

In addition, a majority of the Court in Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (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.Ree. 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 IB James W. Moore et al., Moore’s Federal Practice ¶ 0.404[1] (2d ed. 1993) (hereinafter “Moore”). “The doctrine of the law of the ease 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, 112 S.Ct. 184, 116 L.Ed.2d 145 (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 IB 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, 132 L.Ed.2d 158 (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 ease doctrine; and (in) 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, 104 S.Ct. 2305, 2310-11, 81 L.Ed.2d 164 (1984)). For the reasons that follow, we conclude that no exception to the law of the case doctrine applies here and, therefore, that Cohen II’s rulings of law control the disposition of this appeal.

Brown contends that stare decisis does not bind this panel “to the previous preliminary ruling of this Court because it lacks the element of finality,” Reply Br. at 24, and that the law of the case doctrine does not prevent a court from “changing its mind,” id. at n. 47. We acknowledge that we have repeatedly emphasized that conclusions and holdings regarding the merits of issues presented on appeal from a grant of a preliminary injunction are to be understood as statements as to probable outcomes. E.g., A.M. Capen’s Co. v. American Trading and Prod.

Corp., 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 [wejre 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, “[njothing 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 bare assertions to be unpersuasive, we decline the invitation to this court to “change its mind.” The precedent established by the prior panel is not clearly erroneous; it is the law of this ease 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 ah “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 ease.

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 ease 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 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, 132 L.Ed.2d 158 (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, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (upholding a federal program requiring race-based preferences); City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (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, 107 S.Ct. 1442, 94 L.Ed.2d 615 (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, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (striking down a collective-bargaining faculty lay-off provision requiring preferential treatment for certain racial minorities); Fullilove v.

Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (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, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (upholding a collective bargaining agreement that set aside for blacks half the places in a new training program until the percentage of blacks among skilled workers at the plant was commensurate with the percentage of blacks in the local labor force); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (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.

In addition, Title IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the exis-tenee 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, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (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 eases, the substantial proportionality test of prong one is applied under the Title IX framework, not mechanically, but case-by-ease, 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, 132 L.Ed.2d 63 (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, 100 S.Ct. at 2777 (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, 99 S.Ct. at 2724 (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, 91 S.Ct. 1287, 1288-89, 28 L.Ed.2d 582 (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 voluntaiy 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, 106 S.Ct. at 1848, on the basis of facts insufficient to support a prima facie case of a constitutional or statutory violation, Croson, 488 U.S. at 500, 109 S.Ct. at 725, to the benefit of unidentified victims of past discrimination, see id. at 469, 109 S.Ct. at 706; Wygant, 476 U.S. at 276, 106 S.Ct. at 1848.

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, 109 S.Ct. at 725-28, because “[s]oeietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy,” Wygant, 476 U.S. at 276, 106 S.Ct. at 1848. From a constitutional standpoint, the ease 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, 132 L.Ed.2d 762 (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, 113 S.Ct. 2816, 2830-31, 125 L.Ed.2d 511 (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 ease. 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. Athletic 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, 130 L.Ed.2d 883 (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, 114 S.Ct. 580, 126 L.Ed.2d 478 (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 easelaw and, in addition, is bad policy,” id. We reject Brown’s kitchen-sink characterization of the Policy Inteipretation 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, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (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, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341-42, 90 L.Ed.2d 921 (1986)) (other citation omitted).

As the Supreme Court has explained, “[b]eeause 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, 111 S.Ct. at 1176 (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. 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. See Cohen II, 991 F.2d at 899.

Brown maintains that the district court’s decision imposes upon universities the obligation to engage in preferential treatment for women by requiring quotas in excess of women’s relative interests and abilities. With respect to prong three, Brown asserts that the district court’s

interpretation of the word “fully” “requires universities to favor women’s teams and treat them better than men’s [teams] .... forces them to 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 purposés 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 a£-ter § 703CD 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 for women ab initio, but because Brown has been found (under prong one) to have allocated its athletics participation opportunities so as to create a significant gender-based disparity with respect to these opportunities, and has failed (under prong two) to show a history and continuing practice of expansion of opportunities for the underrepresented gender. Brown’s

interpretation conflates prongs one and three and distorts the three-part test by reducing it to an abstract, mechanical determination of strict numerical proportionality. In short, Brown treats the three-part test for compliance as a one-part test for strict liability. Brown also fails to recognize that Title IX’s remedial focus is, quite properly, not on the overrepresented gender, but on the underrepresented gender; in this case, women. Title IX and .its implementing regulations protect the class for whose special benefit the statute was enacted. See Cannon, 441 U.S. at 694, 99 S.Ct. at 1956.

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, 114 S.Ct. 689, 126 L.Ed.2d 656 (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 VTI 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, 134 L.Ed.2d 191 (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, 102 S.Ct. at 1917-18 (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.

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 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 under represents 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 (“[Tjhere 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, 95 S.Ct. 572, 577-78, 42 L.Ed.2d 610 (1975).

See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336-37, 73 L.Ed.2d 1090 (1982); Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 1194-95, 51 L.Ed.2d 360 (1977); Frontiero v. Richardson, 411 U.S. 677, 684-86, 93 S.Ct. 1764, 1769-70, 36 L.Ed.2d 583 (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, 97 S.Ct. 451, 462-463, 50 L.Ed.2d 397 (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, 97 S.Ct. at 463 (“statistics exhibit a variety of ... shortcomings that seriously impugn their value to equal protection analysis”); id. at 204, 97 S.Ct. at 460-61 (“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, 99 S.Ct. at 1949 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.

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 at the varsity level, 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.

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 pri- or appeal. We reject both premises. Brown’s implicit 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, 110 S.Ct. at 3008-10 (for the proposition that “Congress need not make specific findings of discrimination to grant race-conscious relief’), and Califano v.

Webster, 480 U.S. at 317, 97 S.Ct. at 1194-95 (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, 104 S.Ct. 1211, 1221-22, 79 L.Ed.2d 516.(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, 110 S.Ct. at 3008-09 (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, 109 S.Ct. 706, 102 L.Ed.2d 854, 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 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, 110 S.Ct. at 3008.

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

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