Brown University News Bureau

The Brown University News Bureau

1996-1997 index

Mark Nickel, Director

This is the full text of the dissenting 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. (See also the opinion of the majority and Brown University news release No. 96-050.)

TORRUELLA, Chief Judge (Dissenting).

Because I am not persuaded that the majority's view represents
the state of the law today, I respectfully dissent.


Under the doctrine of the "law of the case," a decision
on an issue of law made by the court at one stage of a case
becomes a binding precedent to be followed in successive stages
of the same litigation except in unusual circumstances. See
Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 22 (1st
Cir. 1993); EEOC v. Trabucco, 791 F.2d 1, 2 (1st Cir. 1986). It
is well established, however, that a decision of the Supreme
Court, that is rendered between two appeals and is irreconcilable
with the decision on the first appeal, must be followed on the
second appeal. See Linkletter v. Walker, 381 U.S. 618, 627
(1965); Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer
Auth., 945 F.2d 10, 12 (1st Cir. 1991), rev'd on other grounds,
506 U.S. 139 (1993); Young v. Herring, 917 F.2d 858 (5th Cir.
1990); Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981),
cert. denied, 459 U.S. 828 (1982). I believe that we face such a
situation in the instant case.

A. Adarand and Metro Broadcasting

At the time of Cohen v. Brown University, 991 F.2d 888 (1st Cir.
1993) (Cohen II), the standard intermediate scrutiny test for
discriminatory classifications based on sex required that "a
statutory classification must be substantially related to
an important government objective." Clark v. Jeter, 486 U.S.
456, 461 (1988); see also Mississippi Univ. for Women v. Hogan,
458 U.S. 718, 723-24, and n.9 (1982); Mills v. Habluetzel, 456
U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976);
Matthews v. Lucas, 427 U.S. 495, 505-06 (1976). As was also the
case under strict scrutiny review prior to Adarand Construction
Inc. v. Pena, __ U.S. __, 115 S. Ct. 2097 (1995), however,
courts applying intermediate scrutiny sometimes allowed "benign"
gender classifications on the grounds that they were a
"reasonable means of compensating women as a class for past ...
discrimination." Ronald D. Rotunda & John E. Novack, 3 Treatise
on Constitutional Law 18.23, at 277; see Califano v. Webster,
430 U.S. 313, 317 (1977) (allowing women to compute certain
social security benefits with a more favorable formula than could
be used by men); Lewis v. Cohen, 435 U.S. 948 (1978) (summary
affirmance of a district court decision upholding a provision of
the Railroad Retirement Act that allowed women to retire at age
60 while men could not retire until age 65).

In Cohen II, we applied precisely this type of benign-
classification analysis to what we viewed to be benign gender
discrimination by the federal government. Although Cohen II, in
its brief discussion of the equal protection issue, does not
specify the precise standard it used, the Court stated that "even
if we were to assume ... that the regulation creates a gender
classification slanted somewhat in favor of women, we would find
no constitutional infirmity." Cohen II, 991 F.2d at 901. Note
that the focus is on the government's ability to favor women in
this context, rather than on an "important government objective,"
suggesting that the Court considered the issue to be one of
benign discrimination. Indeed, no governmental interest is even
identified in Cohen II. Furthermore, both of the cases cited by
the Court in Cohen II are cases in which a suspect classification
was allowed because it was judged benign, see id. at 901 (citing
Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990) (race);
Califano v. Webster, 430 U.S. 313 (1977) (sex)).

Cohen II's assumption that a regulation slanted in favor of women
would be permissible, Cohen II 991 F.2d at 901, and by
implication that the same regulation would be impermissible if it
favored men, was based on Metro Broadcasting, which held that
benign race-based action by the federal government was subject to
a lower standard than non-remedial race-based action. See Metro
Broadcasting, 497 U.S. at 564.

Specifically, the Supreme Court announced that

     benign race-conscious measures mandated
     by Congress are constitutionally
     permissible to the extent that they serve
     important governmental objectives within
     the power of Congress and are
     substantially related to achievement of
     those objectives.

Id. at 565 (emphasis added). Although Metro Broadcasting
explicitly discussed race-conscious rather than gender-conscious
classifications, we applied its standard in Cohen II. See Cohen
II, 991 F.2d at 901.

Since Cohen II, however, Metro Broadcasting has been overruled,
at least in part. See Adarand Constr. Inc. v. Pena,___ U.S. ___,
___, 115 S. Ct. 2097, 2111-12 (1995). In Adarand, the Supreme
Court held that "all racial classifications ... must be analyzed
under strict scrutiny." Adarand, 115 S. Ct. at 2113. The Court in
Adarand singled out Metro Broadcasting as a "significant
departure" from much of the Equal Protection jurisprudence that
had come before it, in part because it suggested that "benign"
government race-conscious classifications should be treated less
skeptically than others. See Adarand, 115 S. Ct. at 2112.

In Adarand, the Supreme Court reasoned that "'it may
not always be clear that a so-called preference is in fact
benign.'" Id. (quoting Regents of Univ. of Cal. v. Bakke, 438
U.S. 265 (1978) (opinion of Powell, J.)). Additionally, the

Supreme Court endorsed the view that

     [a]bsent searching judicial inquiry into the
     justification for such race-based measures,
     there is simply no way of determining what
     classifications are 'benign' or 'remedial'
     and what classifications are in fact
     motivated by illegitimate notions of racial
     inferiority or simple racial politics.

Id. at 2112; see also Richmond v. J.A. Croson Co., 488 U.S. 469,
493 (1989).

It is not necessary to equate race and gender to see that the
logic of Adarand -- counseling that we focus on the categories
and justifications proffered rather than the labels attached --
applies in the context of gender. While cognizant of differences
between race-focused and gender-focused Equal Protection
precedent, I nevertheless think that Adarand compels us to view
so-called "benign" gender-conscious governmental actions under
the same lens as any other gender-conscious governmental actions.
See Adarand, 115 S. Ct. at 2112; see also United States v.
Virginia, 116 S.Ct 2264, 2274, 2277 (1996) (viewing Virginia's 
benign justification for a gender classification skeptically);
Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535, 1557
(D. Ala. 1995) (stating that courts "must look behind the
recitation of a benign purpose to ensure that sex-based
classifications redress past discrimination"). Rather than
conduct an inquiry into whether Title IX and its resulting
interpretations are "benign" or "remedial," and conscious of the
fact that labels can be used to hide illegitimate notions of
inferiority or simple politics just as easily in the context of
gender as in the context of race, we should now follow Adarand's
lead and subject all gender-conscious government action to the
same inquiry.(1)

B. United States v. Virginia

A second Supreme Court case has also made it necessary
to review our decision in Cohen II. In United States v.
Virginia, 116 S.Ct. 2264 (1996), the Court faced an Equal
Protection challenge to Virginia's practice of maintaining the
Virginia Military Institute as an all male institution. Rather
than simply apply the traditional test requiring that gender
classifications be "substantially related to an important
government objective," Clark v. Jeter 486 U.S. 456, 461 (1988),
the Supreme Court applied a more searching "skeptical scrutiny of
official action denying rights or opportunities based on sex,"
id., at 2274, which requires that "[p]arties who seek to defend
gender-based government action must demonstrate an 'exceedingly
persuasive justification' for that action," id. In its
discussion, the Court stated that, in order to prevail in a
gender case, "the State must show at least that the challenged
classification serves important governmental objectives and that
the discriminatory means employed are substantially related to
the achievement of those objectives." Id. at 2275 (internal
quotations omitted) (emphasis added). Being "substantially
related to an important government objective," therefore, is
considered a necessary but not sufficient condition. The Court
also requires a focus on "whether the proffered justification is
"exceedingly persuasive." Id.

Virginia "drastically revise[d] our established standards for
reviewing sex-based classifications." Id. at 2291 (Scalia, J.
dissenting). "Although the Court in two places ... asks whether
the State has demonstrated that the classification serves
important governmental objectives and that the discriminatory
means employed are substantially related to the achievement of
those objectives ... the Court never answers the question
presented in anything resembling that form." Id. at 2294
(citations omitted). "[T]he Court proceeds to interpret
'exceedingly persuasive justification' in a fashion that
contradicts the reasoning of Hogan and our other precedents."

What is important for our purposes is that the Supreme Court
appears to have elevated the test applicable to sex iscrimination
cases to require an "exceedingly persuasive justification." This
is evident from the language of both the majority opinion and the
dissent in Virginia.

This is not just a matter of semantics. Metro Broadcasting, and
our application of its intermediate scrutiny standard in Cohen
II, omitted the additional "skeptical scrutiny" requirement of an
"exceedingly persuasive justification" for gender-based
government action. Compare Virginia, 116 S.Ct. at 2274 (citing
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-37, and n.6
(1994)), and Mississippi Univ. for Women v. Holden, 458 U.S. 718,
724 (1982), with Metro Broadcasting, 497 U.S. at 564-65.

I conclude, therefore, that Adarand and Virginia are
irreconcilable with the analysis in Cohen II and, accordingly, we
must follow the guidance of the Supreme Court in this appeal.
Under the new standards established in those cases, Cohen II is
flawed both because it applies a lenient version of intermediate
scrutiny that is impermissible following Adarand and because it
did not apply the "exceedingly persuasive justification" test of
Virginia. We must, as Brown urges, reexamine the Equal
Protection challenge to the three-prong test as interpreted by
the district court.

C. Preliminary Injunction

In addition to the above reasons for considering the
merits of this appeal, it is important to note that Cohen II was
an appeal from a preliminary injunction. "When an appeal comes
to us in that posture, the appellate court's conclusions as to
the merits of the issues presented on preliminary injunction are
to be understood as statements of probable outcomes, rather than
as comprising the ultimate law of the case." A.M. Capen s Co. v.
American Trading and Prod. Co., 74 F.3d 317, 322 (1st Cir. 1996)
(internal quotations omitted); see also Narrangansett Indian
Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991).

The binding authority of Cohen II, therefore, is lessened by the
fact that it was an appeal from a preliminary injunction. First,
we now have a full record before us and a set of well-defined
legal questions presented by the appellant. Trial on the merits
has served to focus these questions and to provide background
that allows us to consider these questions in the proper context
and in detail. In its decision in Cohen II, this Court recognized
and, indeed, emphasized the fact that its holding was only
preliminary. Cohen II, 991 F.2d at 902 ("a party losing the
battle on likelihood of success may nonetheless win the war at a
succeeding trial"). Rather than turning that ruling into a
permanent one, we should review the question in light of the full
set of facts now available.

Second, the standard of review has changed. The Cohen II Court
stated that it was adopting a deferential standard of review, and
that "if ... the district court made no clear error of law or
fact, we will overturn its calibration ... only for manifest
abuse of discretion." Id. at 902. The test applied by the court
was based on "(1) the movant's probability of victory on the
merits; (2) the potential for irreparable harm if the injunction
is refused; (3) the balance of interests as between the parties .
. . and (4) the public interest." Id. The case is now before us
on appeal from the merits and we must review it accordingly. For
the purposes of this appeal, we must review findings of fact
under a clearly erroneous standard, Reich v. Newspapers of New
England, Inc., 44 F.3d 1060, 1069 (1st Cir. 1995) and findings of
law de novo, Portsmouth v. Schlesinger, 57 F.3d 12, 14 (1st Cir.
1995). Because the standard has changed, it is conceivable that
the result of the analysis will change, making review


Appellees have argued that the three-prong test does not create a
gender classification because the classification applies to both
women and men. Although I agree that by its words, the test would
apply to men at institutions where they are proportionately
underrepresented in intercollegiate athletics, I cannot accept
the argument that, via this provision, the Government does not
classify its citizens by gender. See United States v. Virginia,
___ U.S. ___, 116 S. Ct. 2264, 2274-76 (1996) (applying Equal
Protection review to "gender-based government action" where
Commonwealth of Virginia attempted to maintain two purportedly
equal single-sex institutions). Cf. Loving v. Virginia, 388 U.S.
1, 8-9 (1967) (stating that even though the statute at issue
applied equally to members of different racial classifications,
it still implicated race-related Equal Protection concerns, since
the statute itself contained race-conscious classifications). The
fact of gender-conscious classification, even with equal
enforcement with respect to both genders, requires the
application of a higher level of scrutiny than rational basis
review. We cannot pretend that an interpretation of a statute
that contains explicit categorization according to gender and
that has intentional gender-conscious effect does not represent
gender-based government action. Equal Protection is implicated
where the claim is made that a classification made by the
government intentionally subjects an individual to treatment
different from similarly situated individuals based on an
impermissible characteristic, such as race, national origin, or
gender. Ronald D. Rotunda & John E. Nowak, 3 Treatise on
Constitutional Law 18.2, at 7-8 (2d ed. 1992).

A. The District Court's Construction of the Three-Prong Test

1. Prong One

A central issue in this case is the manner in which athletic
"participation opportunities" are counted. During the 1990-91
academic year, Brown fielded 16 men's and 15 women's varsity
teams on which 566 men and 328 women participated. By the 1993-94
year, there were 12 university-funded men s teams and 13
university funded women s teams. These teams included 479 men
and 312 women. Based on an analysis of membership in varsity
teams, the district court concluded that there existed a
disparity between female participation in intercollegiate
athletics and female student enrollment.

Even assuming that membership numbers in varsity sports is a
reasonable proxy for participation opportunities -- a view
with which I do not concur -- contact sports should be eliminated
from the calculus. The regulation at 34 C.F.R. 106.41
(1995)(b) provides that an academic institution may operate
separate teams for members of each sex "where selection of such
teams is based upon competitive skill or the activity involved is
a contact sport." 34 C.F.R. 106.41(b). When a team is
sponsored only for one sex, however, "members of the excluded sex
must be allowed to try-out for the team offered unless the sport
involved is a contact sport," id. (emphasis added). The
regulation, therefore, allows schools to operate single-sex teams
in contact sports. In counting participation opportunities,
therefore, it does not make sense to include in the calculus
athletes participating in contact sports that include only men's
teams. For example, if a university chooses to sponsor a
football team, it is permitted to sponsor only a men s team. Not
all sports are the same and the university should be given the
flexibility to determine which activities are most beneficial to
its student body. When the university chooses a non-contact
sport, 34 C.F.R. 106.41(b) requires that the school sponsors one
team for each gender, or allow both sexes to try-out. If the
university chooses a contact sport, however, try-outs can be
restricted to one sex. By including in its accounting a contact
sport that requires very large numbers of participants, e.g.,
football, hockey, the district court skews the number of athletic
participants -- making it impossible for the university to
provide both men's and women's teams in other sports.
If the athletes competing in sports for which the
university is permitted to field single-sex teams are excluded
from the calculation of participation rates, the proportion of
women participants would increase dramatically and prong one
might be satisfied. If so, the inquiry ends and Brown should be
judged to be in compliance.

2. Prong Two

The district court concluded, and the majority appears to agree,
that Brown failed to satisfy prong two because "merely reducing
program offerings to the overrepresented gender does not 
constitute program expansion for the underrepresented gender."
Majority Opinion at 18. This is a curious result because the
entire three-prong test is based on relative participation rates.
Prong one, for example, requires that participation opportunities
be provided proportionately to enrollment, but does not mandate
any absolute number of such opportunities. The district court s
conclusion with respect to prong two, however, implies that a
school must not only demonstrate that the proportion of women in
their program is growing over time, it must also show that the
absolute number of women participating is increasing.(2)

Under the district court's interpretation, a school facing
budgetary constraints must, in order to comply with prong
two, increase the opportunities available to the underrepresented
gender, even if it cannot afford to do so. Rather than
respecting the school s right to determine the role athletics
will play in the future -- including reducing the opportunities
available to the formerly overrepresented gender to ensure
proportionate opportunities -- the district court and the
majority demand that the absolute number of opportunities
provided to the underrepresented gender be increased. I see no
possible justification for this interpretation -- the regulation
is intended to protect against discrimination, not to promote
athletics on college campuses. A school is not required to
sponsor an athletic program of any particular size. It is not
for the courts, or the legislature, for that matter, to mandate
programs of a given size. The most that can be demanded is that
athletics be provided in a non-discriminatory manner.

Furthermore, the claim that a reduction in the opportunities
given to the overrepresented gender is an unacceptable method of
coming into compliance with the three prong test is contrary to
both Cohen II and comments of the majority opinion. The majority
quotes approvingly from Cohen v. Brown Univ., 879 F. Supp. 185
(D.R.I. 1995) (Cohen III), to demonstrate the many ways in which
a university might achieve compliance:

     It may eliminate its athletic program
     altogether, it may elevate or create the
     requisite number of women s positions, it
     may demote or eliminate the requisite
     number of men s positions, or it may
     implement a combination of these

Majority Opinion at 70 (quoting Cohen III). This conclusion is
consistent with Cohen II, which states that a school may achieve
compliance by reducing opportunities for the overrepresented
gender. See Cohen II, 991 F.2d at 898 n.15. I fail to see how
these statements can be reconciled with the claim that Brown
cannot satisfy prong two by reducing the number of participation
opportunities for men.

3. Prong Three

Prong three of the three-prong test states that, where an
institution does not comply with prongs one or two, compliance
will be assessed on the basis of

     whether it can be demonstrated that the
     interests and abilities of the members of
     th[e] [proportionately underrepresented]
     sex have been fully and effectively
     accommodated by the present program.

44 Fed. Reg. 71,413, 71,418 (December 11, 1979).

According to the district court, Brown's athletics program
violates prong three because members of the proportionately
underrepresented sex have demonstrated interest sufficient for a
university-funded varsity team that is not in fact being funded.
The district court asserts that this is not a quota. Brown, on
the other hand, argues that prong three is satisfied when (1) the
interests and abilities of members of the proportionately
underrepresented gender (2) are accommodated to the same degree
as the proportionately overrepresented gender.

The district court's narrow, literal interpretation should be
rejected because prong three cannot be read in isolation. First,
as Brown points out, the Regulation that includes prong three
provides that, in assessing compliance under the regulation, "the
governing principle in this area is that the athletic interests
and abilities of male and female students be equally effectively
accommodated." Policy Interpretation, 44 Fed. Reg. 71,413,
71,414. Thus, Brown contends, to meet "fully" -- in an absolute
sense -- the interests and abilities of an underrepresented
gender, while unmet interest among the overrepresented gender
continues, would contravene the governing principle of "equally
effective accommodat[ion]" of the interests and abilities of
students of both genders.

It is also worthwhile to note that to "fully" accommodate the
interests and abilities of the underrepresented sex is an
extraordinarily high -- perhaps impossibly so -- underrepresented
sex may be impossible under the district court's interpretation.

In light of the above, Brown argues that prong three is
in fact ambiguous with respect to whether "fully" means (1) an
institution must meet 100% of the underrepresented gender's unmet
reasonable interest and ability, or (2) an institution must meet
the underrepresented gender's unmet reasonable interest and
ability as fully as it meets those of the overrepresented gender.
I agree with Brown that, in the context of OCR's Policy
Interpretation, prong three is susceptible to at least these two
plausible interpretations. 

Additionally, section 1681(a), a provision enacted by Congress as
part of Title IX itself, casts doubt on the district court's
reading of prong three. 20 U.S.C. 1681(a) (1988). As Brown points
out, Title IX, of which the Policy Interpretation is an
administrative interpretation, contains language that prohibits
the ordering of preferential treatment on the basis of gender due
to a failure of a program to substantially mirror the gender
ratio of an institution. Specifically, with respect to Title IX's
guarantee that no person shall be excluded on the basis of sex
from "participation in, denied the benefits of or subjected to
discrimination under any education program or activity receiving
Federal financial assistance," 20 U.S.C. 1681(a),

     [n]othing contained [therein] shall be
     interpreted to require any educational
     institution to grant preferential or
     disparate treatment to the members of one
     sex on account of an imbalance which may
     exist with respect to the total number or
     percentage of persons of the sex
     participating in or receiving the
     benefits of any federally supported
     program or activity, in comparison with
     the total number or percentage of persons
     of that sex in any community.

Id. 1681(b). Section 1681(b) provides yet another reason why
the district court's reading of prong three is troublesome and
why Brown's reading is a reasonable alternative.

Since the applicable regulation, 34 C.F.R. 106.41, and policy
interpretation, 44 Fed. Reg. 71,418, are not manifestly contrary
to the objectives of Title IX, and Congress has specifically
delegated to an agency the responsibility to articulate standards
governing a particular area, we must accord the ensuing
regulation considerable deference. Chevron, U.S.A. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). That
notwithstanding, where -- as here -- the resulting regulation is
susceptible to more than one reasonable interpretation, we owe no
such deference to the interpretation chosen, where the choice is
made not by the agency but by the district court. Therefore, like
other cases of statutory interpretation, we should review the
district court's reading de novo.

B. The District Court's Interpretation and the Resulting Equal
   Protection Problem

The district court's interpretation of prongs one and three
creates an Equal Protection problem, which I analyze in two
steps. First, the district court's interpretation creates a
quota scheme. Second, even assuming such a quota scheme is
otherwise constitutional, Appellees have not pointed to an
"exceedingly persuasive justification," see Virginia, 116 S.Ct.
at 2274, for this particular quota scheme.

1. The Quota

I believe that the three prong test, as the district court
interprets it, is a quota. I am in square disagreement with the
majority, who believe that "[n]o aspect of the Title IX regime at
issue in this case ... mandates gender-based preferences or
quotas." Majority Opinion at 29. Put another way, I agree that
"Title IX is not an affirmative action statute," id., but I
believe that is exactly what the district court has made of it.
As interpreted by the district court, the test constitutes an
affirmative action, quota-based scheme.

I am less interested in the actual term "quota" than the legally
cognizable characteristics that render a quota scheme
impermissible. And those characteristics are present here in
spades. I am not persuaded by the majority's argument that the
three-part test does not constitute a quota because it does not
permit an agency or court to find a violation solely on the basis
of prong one of the test; instead, an institution must also fail
prongs two and three. As Brown rightly argues, the district
court's application of the three-prong test requires Brown to
allocate its athletic resources to meet the as-yet-unmet interest
of a member of the underrepresented sex, women in this case,
while simultaneously neglecting any unmet interest among
individuals of the overrepresented sex. To the extent that the
rate of interest in athletics diverges between men and women at
any institution, the district court's interpretation would
require that such an institution treat an individual male
student's athletic interest and an individual female student's
athletic interest completely differently: one student's
reasonable interest would have to be met, by law, while meeting
the other student's interest would only aggravate the lack of
proportionality giving rise to the legal duty. "The injury in
cases of this kind is that a 'discriminatory classification
prevent[s] ... competition on an equal footing.'" Adarand, 115
S. Ct. at 2104 (quoting Northeast Fla. Chapter, Assoc'd Gen'l
Contractors of America v. Jacksonville, 508 U.S. 656, 666
(1993)). As a result, individual male and female students would
be precluded from competing against each other for scarce
resources; they would instead compete only against members of
their own gender. Cf. Hopwood v. Texas, 78 F.3d 932, 943-46 (5th
Cir.) (concluding that not only would government action
precluding competition between individuals of different races for
law school admissions be unconstitutional, but in fact even
partial consideration of race among other factors would be
unconstitutional), cert. denied, 116 S.Ct. 2581 (1996).(3)

The majority claims that "neither the Policy Interpretation nor
the district court's interpretation of it, mandates statistical
balancing." Majority Opinion at 41. The logic of this position
escapes me. A school can satisfy the test in three ways. The
first prong is met if the school provides participation
opportunities for male and female students in numbers
substantially proportionate to their enrollments. This prong
surely requires statistical balancing. The second prong is
satisfied if an institution that cannot meet prong one can show a
"continuing practice of program expansion which is demonstrably
responsive to the developing interest and abilities of the
members of the underrepresented sex." 44 Fed. Reg. at 71,418.
It can hardly be denied that this prong requires statistical
balancing as it is essentially a test that requires the school to
show that it is moving in the direction of satisfying the first
prong. Establishing that a school is moving inexorably closer to
satisfying a requirement that demands statistical balancing can
only be done by demonstrating an improvement in the statistical
balance. In other words, the second prong also requires
balancing. Finally, the third prong, interpreted as the majority
advocates, dispenses with statistical balancing only because it
choose to accord zero weight to one side of the balance. Even a
single person with a reasonable unmet interest defeats
compliance. This standard, in fact, goes farther than the
straightforward quota test of prong one. According to the
district court, the unmet interests of the underrepresented sex
must be completely accommodated before any of the interest of the
overrepresented gender can be accommodated.(4)

A pragmatic overview of the effect of the three-prong test leads
me to reject the majority's claim that the three-prong test does
not amount to a quota because it involves multiple prongs. In my
view it is the result of the test, and not the number of steps
involved, that should determine if a quota system exists.
Regardless of how many steps are involved, the fact remains that
the test requires proportionate participation opportunities for
both sexes (prong one) unless one sex is simply not interested in
participating (prong three). It seems to me that a quota with an
exception for situations in which there are insufficient
interested students to allow the school to meet it remains a
quota. All of the negative effects of a quota remain,(5) and the
school can escape the quota under prong three only by offering
preferential treatment to the group that has demonstrated less
interest in athletics.

2. "Extremely Persuasive Justification" Test

In view of the quota scheme adopted by the district court, and
Congress' specific disavowal of any intent to require quotas as
part of Title IX, Appellees have not met their burden of showing
an "exceedingly persuasive justification" for this
gender-conscious exercise of government authority. As recently
set forth in Virginia, "[p]arties who seek to defend gender-based
government action must demonstrate an 'exceedingly persuasive
justification' for that action." Virginia, 116 S.Ct. at 2274.
While the Supreme Court in Virginia acknowledged that "[p]hysical
differences between men and women ... are enduring," id. at
2276, it went on to state that such "'[i]nherent differences'
between men and women, we have come to appreciate, remain cause
for celebration, but not for ... artificial constraints on an
individual's opportunity." Id.

Neither Appellees nor the district court have demonstrated an
"exceedingly persuasive justification" for the government action
that the district court has directed in this case. In fact,
Appellees have failed to point to any congressional statement or
indication of intent regarding a proportional representation
scheme as applied by the district court. While they point to
Congress' decision to delegate authority to the relevant
agencies, this does not amount to a genuine -- that is, not
hypothesized or invented in view of litigation, id. at 2275 --
exceedingly persuasive justification in light of section
1681(b)'s "no quota" provision. We are left with the explanations
discussed in Cohen II to the effect that Congress conducted
hearings on the subject of discrimination against women in
education. There is little more than that, because Congress
adopted Title IX as a floor amendment without committee hearings
or reports. See Cohen II, 991 F.2d at 893.

I believe that the district court's interpretation of the Policy
Interpretation's three-prong test poses serious constitutional
difficulties. "[W]here an otherwise acceptable construction of a
statute would raise serious constitutional problems, [we]
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress."
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568 (1988); see NLRB v. Catholic Bishop
of Chicago, 440 U.S. 490, 507 (1979). To the extent that
Congress expressed a specific intent germane to the district
court's interpretation, Congress, if anything, expressed an
aversion to quotas as a method to enforce Title IX. As a result,
I opt for Brown's construction of prong three, which, as we have
discussed, infra, is also a reasonable reading.

Accordingly, I would reverse and remand for further proceedings.

III. Evidentiary Issues

In disputes over the representation of women in athletic
programs, it is inevitable that statistical evidence will be
relevant. There is simply no other way to assess participation
rates, interest levels, and abilities. The majority opinion,
however, offers inconsistent guidance with respect to the role of
statistics in Title IX claims. Early in the opinion, the majority
approvingly cites to the statistical evaluations conducted in
Cohen I, Cohen II, and Cohen III. Majority Opinion at 8-10. The
figures in question demonstrate that women s participation in
athletics is less than proportional to their enrollment. Later in
the opinion, however, when the level of interest among women at
Brown is at issue, the Court adopts a much more critical attitude
towards statistical evidence: "[T]here exists the danger that,
rather than providing a true measure of women s interest in
sports, statistical evidence purporting to reflect women s
interest instead provides only a measure of the very
discrimination that is and has been the basis for women s lack of
opportunity." Majority Opinion at 53. In other words, evidence of
differential levels of interest is not to be credited because it
may simply reflect the result of past discrimination.

The refusal to accept surveys of interest levels as evidence of
interest raises the question of what indicators might be used.
The majority offers no guidance to a school seeking to assess the
levels of interest of its students. Although the three-prong
test, even as interpreted by the district court, appears to allow
the school the opportunity to show a lack of interest, the
majority rejects the best -- and perhaps the only -- mechanism
for making such a showing.

Brown claims that the district court erred in excluding
evidence pertaining to the relative athletic interests of men and
women at the university. Brown sought to introduce the NCAA
Gender Equity Study and the results of an undergraduate poll on
student interest in athletics, but was not permitted to do so.
The majority is unsympathetic to Brown's claim that the disparity
between athletic opportunities for men and women reflect a
gender-based difference in interest levels. Indeed, despite
Brown's attempt to present evidence in support of its claim, the
majority characterizes Brown's argument as an "unproven
assertion." Majority Opinion at 51.(6)

Furthermore, the majority recognizes that institutions are
entitled to use any nondiscriminatory method of their choosing to
determine athletic interests. Majority Opinion at 53 n.15. If
statistical evidence of interest levels is not to be considered
by courts, however, there is no way for schools to determine
whether they are in compliance. Any studies or surveys they might
conduct in order to assess their own compliance would, in the
event of litigation, be deemed irrelevant. Regardless of the
efforts made by the academic institution, the specter of a
lawsuit would be ever-present.

In addition, the majority has put the power to control athletics
and the provision of athletic resources in the hands of the
underrepresented gender. Virtually every other aspect of college
life is entrusted to the institution, but athletics has now been
carved out as an exception and the university is no longer in
full control of its program. Unless the two genders participate
equally in athletics, members of the underrepresented sex would
have the ability to demand a varsity level team at any time if
they can show sufficient interest. Apparently no weight is given
to the sustainability of the interest, the cost of the sport, the
university s view on the desirability of the sport, and so on.

                    IV. FIRST AMENDMENT ISSUE

Finally, it is important to remember that Brown University is a
private institution with a constitutionally protected First
Amendment right to choose its curriculum. Athletics are part of
that curriculum. Although the protections of the First Amendment
cannot be used to justify discrimination, this Court should not
forget that it has a duty to protect a private institution s
right to mould its own educational environment.

The majority pays lip service to these concerns in the final
pages of its long opinion, stating that "we are a society that
cherishes academic freedom and recognizes that universities
deserve great leeway in their operations." Majority Opinion at
69 (quoting Cohen II, 991 F.2d at 906), and "[o]ur respect for
academic freedom and reluctance to interject ourselves into the
conduct of university affairs counsels that we give universities
as much freedom as possible." Majority Opinion at 75. Despite
these statements, however, the majority in its opinion today, and
the district court before it, have failed to give Brown
University freedom to craft its own athletic program and to
choose the priorities of that program. Instead, they have
established a legal rule that straightjackets college athletics
programs by curtailing their freedom to choose the sports they


1. Our discussion in Cohen II also cited Califano v. Webster, 430
U.S. 313 (1977), which has not been explicitly overruled. That
case concerned Congress' provision, under the Social Security
Act, for a lower retirement age for women than for men, with the
result that, as between similarly situated male and female
wage-earners, the female wage-earner would be awarded higher
monthly social security payments, id. at 314-16. In that case,
Congress specifically found that more frequent and lower age
limits were being applied to women than to men in the labor
market. Id. at 319. This led the Supreme Court to characterize
the provision at issue as remedial rather than benign, noting
that the provision had been repealed in 1972, roughly
contemporaneously with "congressional [anti-discrimination]
reforms [that] ... have lessened the economic justification for
the more favorable benefit computation" for women. Id. at 320.
The instant case should be distinguished from Califano for two
reasons. First, Califano did not necessarily rule on benign
classifications, as Metro Broadcasting and Adarand clearly
did. Second, Califano, unlike the instant case, contained an
"exceedingly persuasive justification" for its gender-
conscious state action.

2. This requirement presents a dilemma for a school in
which women are less interested in athletics, as Brown
contends is the case. Under such conditions, a school may be
unable to succeed under the second prong because there may
not be enough interested female students to achieve a
continuing increase in the number of female participants.

3. In response, Appellees cite Kelley v. Board of Trustees,
35 F.3d 265 271 (1994), for the proposition that the three-
prong test does not constitute a quota, because it does not
"require any educational institution to grant preferential or
disparate treatment" to the gender underrepresented in that
institution's athletic program. Id. However, in Kelley, the
Seventh Circuit, unlike the district court, did not use the
three-prong test as a definitive test for liability. Rather,
the Seventh Circuit endorsed the test as one for compliance,
in dismissing the plaintiff's claims. The Seventh Circuit
did not consider the question of whether, had the defendant
University of Illinois not been in compliance, lack of
compliance with the three-prong test alone would trigger
automatic liability, nor did the Seventh Circuit spell out
what steps would have been required of defendant. At any
rate, Kelley pre-dates the Supreme Court's opinions in
Adarand and Virginia, meaning that it suffers from the same
defects as Cohen II.

4. The problem with the majority s argument can be
illustrated with a hypothetical college admissions policy
that would require proportionality between the gender ratio
of the local student aged population and that of admitted
students. This policy is comparable to prong one of the
three prong test and is, without a doubt, a quota. It is no
less a quota if an exception exists for schools whose gender
ratio differs from that of the local population but which
admit every applicant of the underrepresented gender. It
remains a quota because the school is forced to admit every
female applicant until it reaches the requisite proportion.
Similarly, the district court's interpretation requires the
school to accommodate the interests of every female student
until proportionality is reached.

5. Nor does the second prong of the test change the analysis.
That prong merely recognizes that a school may not be able to
meet the quotas of the first or third prong immediately, and
therefore deems it sufficient to show program expansion that is
responsive to the interests of the underrepresented sex.

6. Among the evidence submitted by Brown are: (I) admissions data
showing greater athletic interest among male applicants than
female applicants; (ii) college board data showing greater
athletic interest and prior participation rates by prospective
male applicants than female applicants; (iii) data from the
Cooperative Institutional Research Program at UCLA indicating
greater athletic interest among men than women; (iv) an
independent telephone survey of 500 randomly selected Brown
undergraduates that reveals that Brown offers women participation
opportunities in excess of their representation in the pool of
interested, qualified students; (v) intramural and club
participation rates that demonstrate higher participation rates
among men than women; (vi) walk-on and try-out numbers that
reflect a greater interest among men than women; (vii) high
school participation rates that show a much lower rate of
participation among female than among males; (viii) the NCAA
Gender Equity Committee data showing that women across the
country participate in athletics at a lower rate than men.