UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2483
AMY COHEN, ET AL.,
Plaintiffs, Appellees,
v.
BROWN UNIVERSITY, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Selya, Cyr and Stahl, Circuit Judges.
Jeffrey S. Michaelson, with whom Julius C. Michaelson,
Michaelson & Michaelson, and Beverly E. Ledbetter were on brief,
for appellants.
Lynette Labinger, with whom Roney & Labinger, Sandra L.
Duggan, Kronfeld, Newberg & Duggan, Arthur H. Bryant, Trial
Lawyers for Public Justice, P.C., Raymond Marcaccio, Blish &
Cavanagh, Amato A. DeLuca, and Mandell, DeLuca & Schwartz, Ltd.
were on brief, for appellees.
Linda S. Stein, Margaret M. Clark, Steptoe & Johnson, Ellen
J. Vargyas, and Deborah L. Brake on brief for National Women's
Law Center, Woman's Sports Foundation, and National Association
for Girls and Women in Sport, amici curiae.
April 16, 1993
SELYA, Circuit Judge. In this watershed case,
SELYA, Circuit Judge.
defendants-appellants Brown University, Vartan Gregorian, and
David Roach appeal from the district court's issuance of a
preliminary injunction ordering Brown to reinstate its women's
gymnastics and volleyball programs to full intercollegiate
varsity status pending the resolution of a Title IX claim.1 See
Cohen v. Brown Univ., 809 F. Supp. 978 (D.R.I. 1992). After
mapping Title IX's rugged legal terrain and cutting a passable
swath through the factual thicket that overspreads the parties'
arguments, we affirm.
I. BROWN ATHLETICS: AN OVERVIEW
College athletics, particularly in the realm of
football and basketball, has traditionally occupied a prominent
role in American sports and American society. For college
students, athletics offers an opportunity to exacuate leadership
skills, learn teamwork, build self-confidence, and perfect self-
discipline. In addition, for many student-athletes, physical
skills are a passport to college admissions and scholarships,
allowing them to attend otherwise inaccessible schools. These
opportunities, and the lessons learned on the playing fields, are
invaluable in attaining career and life successes in and out of
professional sports.
The highway of opportunity runs in both directions.
1The individual defendants are, respectively, the President
and Athletic Director of the University. Each is sued in his
official capacity. For ease in reference, we discuss this appeal
as if Brown was the sole defendant and appellant. Nonetheless,
our opinion applies equally to all parties.
2
Not only student-athletes, but universities, too, benefit from
the magic of intercollegiate sports. Successful teams generate
television revenues and gate receipts which often fund
significant percentages of a university's overall athletic
program, offering students the opportunity to partake of sports
that are not financially self-sustaining. Even those
institutions whose teams do not fill the grandstands of cavernous
stadiums or attract national television exposure benefit from
increased student and alumni cohesion and the support it
engenders. Thus, universities nurture the legends, great or
small, inhering in their athletic past, polishing the hardware
that adorns field-house trophy cases and reliving heroic exploits
in the pages of alumni magazines.
In these terms, Brown will never be confused with Notre
Dame or the more muscular members of the Big Ten. Although its
football team did play in the 1916 Rose Bowl and its men's
basketball team won the Ivy League championship as recently as
1986, Brown's athletic program has only occasionally achieved
national prominence or, for that matter, enjoyed sustained
success.2 Moreover, at Brown, as at most schools, women are a
relatively inconspicuous part of the storied athletic past.
Historically, colleges limited athletics to the male sphere,
leaving those few women's teams that sprouted to scrounge for
resources.
2We note, not without a certain irony, that the now-demoted
women's volleyball and gymnastics teams won Ivy League
championships in 1988 and 1990, respectively.
3
The absence of women's athletics at Brown was, until
1970, an ineluctable consequence of the absence of women; Brown
sponsored a women's college Pembroke but did not itself admit
women. In 1971, Brown subsumed Pembroke. Brown promptly
upgraded Pembroke's rather primitive athletic offerings so that
by 1977 there were fourteen women's varsity teams. In subsequent
years, Brown added only one distaff team: winter track. Hence,
in the 1991-92 academic year, Brown fielded fifteen women's
varsity teams one fewer than the number of men's varsity teams.
II. THE PLAINTIFF CLASS
In the spring of 1991, Brown announced that it, like
many other schools, was in a financial bind, and that, as a belt-
tightening measure, it planned to drop four sports from its
intercollegiate varsity athletic roster: women's volleyball and
gymnastics, men's golf and water polo. The University permitted
the teams to continue playing as "intercollegiate clubs," a
status that allowed them to compete against varsity teams from
other colleges,3 but cut off financial subsidies and support
services routinely available to varsity teams (e.g., salaried
coaches, access to prime facilities, preferred practice time,
medical trainers, clerical assistance, office support, admission
preferences, and the like). Brown estimated that eliminating
3As a practical matter, many schools with varsity squads are
reluctant to compete against club teams. This case aptly
illustrates the point. As soon as Brown demoted its women's
volleyball team from varsity to club status, Northeastern
University and West Point declined to include Brown on future
volleyball schedules. See Cohen, 809 F. Supp. at 993.
4
these four varsity teams would save $77,813 per annum, broken
down as follows: women's volleyball, $37,127; women's
gymnastics, $24,901; men's water polo, $9,250; men's golf,
$6,545.
Before the cuts, Brown athletics offered an aggregate
of 328 varsity slots for female athletes and 566 varsity slots
for male athletes. Thus, women had 36.7% of the athletic
opportunities and men 63.3%. Abolishing the four varsity teams
took substantially more dollars from the women's athletic budget
than from the men's budget, but did not materially affect the
athletic opportunity ratios; women retained 36.6% of the
opportunities and men 63.4%. At that time (and for a number of
years prior thereto), Brown's student body comprised
approximately 52% men and 48% women.
Following Brown's announcement of the cutbacks,
disappointed members of the women's volleyball and gymnastics
teams brought suit. They proceeded on an implied cause of action
under Title IX, 20 U.S.C. 1681-1688 (1988). See Franklin v.
Gwinnett County Pub. Sch., 112 S. Ct. 1028, 1032 (1992)
(recognizing implied private right of action under Title IX);
Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (same);
see also Cannon, 441 U.S. at 687 n.8 (holding that exhaustion of
administrative remedies is not a prerequisite to a Title IX
suit). The plaintiffs charged that Brown's athletic arrangements
violated Title IX's ban on gender-based discrimination, a
violation that was allegedly exacerbated by Brown's decision to
5
devalue the two women's programs without first making sufficient
reductions in men's activities or, in the alternative, adding
other women's teams to compensate for the loss.
On plaintiffs' motion, the district court certified a
class of "all present and future Brown University women students
and potential students who participate, seek to participate,
and/or are deterred from participating in intercollegiate
athletics funded by Brown." And, after hearing fourteen days of
testimony from twenty witnesses, the judge granted a preliminary
injunction requiring Brown to reinstate the two women's teams
pending the outcome of a full trial on the merits. See Cohen,
809 F. Supp. at 1001. We stayed execution of the order and
expedited Brown's appeal.
III. TITLE IX AND COLLEGIATE ATHLETICS
Title IX prohibits gender-based discrimination by
educational institutions receiving federal financial support in
practice, the vast majority of all accredited colleges and
universities. The statute sketches wide policy lines, leaving
the details to regulating agencies. Since this appeal demands
that we invade terra incognita,4 we carefully recount the
4Although there has been a spate of sports-related Title IX
suits during the last two years, see Andrew Blum, Athletics in
the Courts, Nat'l L.J., Apr. 5, 1993, at 1, few have been fully
litigated. See, e.g., Carol Herwig, Massachusetts Reinstates
Women's Sports, USA Today, Oct. 22, 1992, at 14C (announcing
agreement to reinstate three women's teams at the University of
Massachusetts and reporting the school's intention to become "the
first university in the country to come into full compliance with
Title IX"). While the case we decide today is apparently the
6
developments leading to the present version of Title IX and then
examine the pertinent statutory and regulatory language.
A. Scope of Title IX.
At its inception, the broad proscriptive language of
Title IX caused considerable consternation in the academic world.
The academy's anxiety chiefly centered around identifying which
individual programs, particularly in terms of athletics, might
come within the scope of the discrimination provision, and,
relatedly, how the government would determine compliance. The
gridiron fueled these concerns: for many schools, the men's
football budget far exceeded that of any other sport, and men's
athletics as a whole received the lion's share of dedicated
resources a share that, typically, was vastly disproportionate
to the percentage of men in the student body.
Part of the confusion about the scope of Title IX's
coverage and the acceptable avenues of compliance arose from the
absence of secondary legislative materials. Congress included no
committee report with the final bill and there were apparently
only two mentions of intercollegiate athletics during the
congressional debate. See 118 Cong. Rec. 5,807 (1972) (statement
of Sen. Bayh on privacy in athletic facilities); 117 Cong. Rec.
30,407 (1971) (statement of Sen. Bayh noting that proposed Title
first of these to reach the courts of appeals, others are
pending. See, e.g., Roberts v. Colorado State Univ., No. 93-1052
(10th Cir. 1993) (not yet argued); Cook v. Colgate Univ., No. 92-
9175 (2d Cir. 1993) (argued Feb. 26, 1993).
7
IX will not require gender-blended football teams).
Nevertheless, under congressional direction to implement Title
IX, the Secretary of Health, Education and Welfare (HEW)
promulgated regulations in 1975 which included specific
provisions for college athletics. Four years later, HEW's Office
of Civil Rights (OCR) added another layer of regulatory exegesis
when, after notice and comment, it published a "Policy
Interpretation" that offered a more detailed measure of equal
athletic opportunity.
In 1984, the Supreme Court radically altered the
contemporary reading of Title IX. The Court held that Title IX
was "program-specific," so that its tenets applied only to the
program(s) which actually received federal funds and not to the
rest of the university. Grove City College v. Bell, 465 U.S.
555, 574 (1984). Because few athletic departments are direct
recipients of federal funds most federal money for universities
is channelled through financial aid offices or invested directly
in research grants Grove City cabined Title IX and placed
virtually all collegiate athletic programs beyond its reach.5
In response to Grove City, Congress scrapped the
program-specific approach and reinstated an institution-wide
application of Title IX by passing the Civil Rights Restoration
5Following the Court's decision in Grove City, the United
States Department of Education (which by then had been spun off
from HEW, see infra Part III(C)) dropped or curtailed seventy-
nine ongoing Title IX cases. See Statements on Civil Rights
Restoration Act, Daily Lab. Rep. (BNA) No. 53, at D1 (Mar. 20,
1981).
8
Act of 1987, 20 U.S.C. 1687 (1988). The Restoration Act
required that if any arm of an educational institution received
federal funds, the institution as a whole must comply with Title
IX's provisions. See id.; see also S. Rep. No. 64, 100th Cong.,
2d Sess. 4 (1988), reprinted in 1988 U.S.C.C.A.N. 3, 6
(explaining that Congress wanted to prohibit discrimination
throughout an institution if the institution received any federal
funds). Although the Restoration Act does not specifically
mention sports, the record of the floor debate leaves little
doubt that the enactment was aimed, in part, at creating a more
level playing field for female athletes. See, e.g., 130 Cong.
Rec. S12,642 (daily ed. Oct. 2, 1984) (statement of Sen. Byrd
decrying past discrimination against female athletes); 130 Cong.
Rec. S11,253 (daily ed. Sept. 17, 1984) (statement of Sen. Hatch
regarding importance of Title IX to ensuring development of women
athletes); 130 Cong. Rec. S2,267 (daily ed. Mar. 2, 1984)
(statement of Sen. Riegle noting extensive evidence of sex
discrimination in education and athletics).
The appellants do not challenge the district court's
finding that, under existing law, Brown's athletic department is
subject to Title IX. Accordingly, we devote the remainder of
Part III to deterrating the meaning of Title IX, looking first at
the statute and then at the regulations.
B. Statutory Framework.
Title IX, like the Restoration Act, does not explicitly
9
treat college athletics.6 Rather, the statute's heart is a
broad prohibition of gender-based discrimination in all
programmatic aspects of educational institutions:
No 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. 1681(a) (1988). After listing a number of exempt
organizations, section 1681 makes clear that, while Title IX
prohibits discrimination, it does not mandate strict numerical
equality between the gender balance of a college's athletic
program and the gender balance of its student body. Thus,
section 1681(a) 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
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:
Provided, That this subsection shall not be
construed to prevent the consideration in any
hearing or 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.
6This lacuna apparently results from a political compromise.
After the Conference Committee deleted an amendment to Title IX
that would have exempted "revenue-producing" athletics, Congress
asked the Secretary of HEW to provide regulations specifically
governing athletics. See 44 Fed. Reg. 71,413 (1979).
10
20 U.S.C. 1681(b) (1988). Put another way, 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.
That is not to say, however, that evidence of such a
disparity is irrelevant. Quite the contrary: under the proviso
contained in section 1681(b), a Title IX plaintiff in an athletic
discrimination suit must accompany statistical evidence of
disparate impact with some further evidence of discrimination,
such as unmet needamongst the members of thedisadvantaged gender.
C. Regulatory Framework.
As we mentioned above, the Secretary of HEW, following
Congress's instructions, promulgated regulations implementing
Title IX in the pre-Grove City era. See 40 Fed. Reg. 24,128
(1975). Thereafter, in 1979, Congress split HEW into the
Department of Health and Human Services (HHS) and the Department
of Education (DED). See 20 U.S.C. 3401-3510 (1988). In a
wonderful example of bureaucratic muddle, the existing Title IX
regulations were left within HHS's arsenal while, at the same
time, DED replicated them as part of its own regulatory
armamentarium. Compare 45 C.F.R. 86 (1992) (HHS regulations)
with 34 C.F.R. 106 (1992) (DED regulations). Both sets of
regulations were still in effect when the Restoration Act passed.
They are identical, save only for changes in nomenclature
reflecting the reorganization of the federal bureaucracy.
11
In short, like pretenders to the emirate of a deceased
sheik, both HHS and DED lay an hereditary claim to this oasis
which arises from the regulatory desert, asserting authority to
enforce Title IX. Nevertheless, DED is the principle locus of
ongoing enforcement activity. See 20 U.S.C. 3441(a)(1)
(transferring all education functions of HEW to DED); see also 20
U.S.C. 3441(a)(3) (transferring education-related OCR work to
DED). Therefore, like the parties, we treat DED, acting through
its OCR, as the administrative agency charged with administering
Title IX.7
Recognizing the agency's role has important practical
and legal consequences. Although DED is not a party to this
appeal, we must accord its interpretation of Title IX appreciable
deference. See Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984); see also Udall v.
Tallman, 380 U.S. 1, 16 (1965) (noting that the Supreme Court
"gives great deference to the interpretation given the statute by
the officers or agency charged with its administration"). The
degree of deference is particularly high in Title IX cases
because Congress explicitly delegated to the agency the task of
prescribing standards for athletic programs under Title IX. See
Pub. L. No. 93-380, 844, 88 Stat. 612 (1974); see also Chevron,
467 U.S. at 844 (holding that where Congress has explicitly
7From this point forward, we use the acronym "OCR" to refer
to DED's Office of Civil Rights which took on the education-
related portfolio of HEW's Office of Civil Rights in May, 1980.
See 20 U.S.C. 3441(a)(3).
12
delegated responsibility to an agency, the regulation deserves
"controlling weight"); Batterton v. Francis, 432 U.S. 416, 425
(1977); Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990).
It is against this backdrop that we scrutinize the
regulations and the Policy Interpretation.
1. The Regulations. DED's regulations begin by
1. The Regulations.
detailing Title IX's application to college athletics.8 The
regulations also recognize, however, that an athletic program may
consist of gender-segregated teams as long as one of two
conditions is met: either the sport in which the team competes
is a contact sport or the institution offers comparable teams in
the sport to both genders. See 34 C.F.R. 106.41(b).
Finally, whether teams are segregated by sex or not,
the school must provide gender-blind equality of opportunity to
its student body. The regulations offer a non-exclusive
compendium of ten factors which OCR will consider in assessing
compliance with this mandate:
(1) Whether the selection of sports and
levels of competition effectively accommodate
the interests and abilities of members of
8The regulations provide:
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.
34 C.F.R. 106.41(a) (1992).
13
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 of
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.
34 C.F.R. 106.41(c) (1992).9 The district court rested its
preliminary injunction on the first of these ten areas of
inquiry: Brown's failure effectively to accommodate the
interests and abilities of female students in the selection and
level of sports. See Cohen, 809 F. Supp. at 994. Hence, this
area is the most critical in terms of evaluating the charges
against Brown (although it is also the most difficult to
measure).
2. The Policy Interpretation. In the three years next
2. The Policy Interpretation.
following the initial issuance of the regulations, HEW received
9The same regulation also stipulates that:
Unequal aggregate expenditures for members of
each sex or unequal expenditures for male and
female teams if a recipient operates or
sponsors separate teams will not constitute
noncompliance with this section, but [DED]
may consider the failure to provide necessary
funds for teams for one sex in assessing
equality of opportunity for members of each
sex.
34 C.F.R. 106.41(c) (1992).
14
over one hundred discrimination complaints involving more than
fifty schools. In order to encourage self-policing and thereby
winnow complaints, HEW proposed a Policy Interpretation. See 43
Fed. Reg. 58,070 (1978). It then promulgated the Policy
Interpretation in final form, see 44 Fed. Reg. 71,413 (1979), a
matter of months before the effective date of the statute through
which Congress, emulating King Solomon, split HEW. The parties
are in agreement that, at DED's birth, it clutched the Policy
Interpretation, and, as a practical matter, that appears to be
the case.10 See, e.g., DED, Title IX Athletics Investigator's
Manual 1, 2 (1990) (Manual); see also Complaint Letter from
Regional Civil Rights Director, DED, to Dr. Martin Massengale,
Chancellor, Univ. of Nebraska (July 10, 1989) (noting that DED
"ha[s] followed the directions provided in the Policy
Interpretation"); Complaint Letter from Regional Civil Rights
Director, DED, to Dr. Charles A. Walker, Chancellor, Univ. of
Arkansas (Sept. 1, 1989) (same). Although we can find no record
that DED formally adopted the Policy Interpretation, we see no
point to splitting the hair, particularly where the parties have
not asked us to do so. Because this document is a considered
interpretation of the regulation, we cede it substantial
deference. See Martin v. OSHRC, 111 S. Ct. 1171, 1175-76 (1991);
10Congress clearly assigned HEW's regulatory duties in
education to the nascent DED. See 20 U.S.C. 3441. Moreover,
in taking up its mantle, DED adopted exactly the regulation which
the Policy Interpretation purported to interpret sending an
unmistakably clear signal of the agency's satisfaction with the
Policy Interpretation.
15
Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).
In line with the Supreme Court's direction that, "if we
are to give [Title IX] the scope that its origins dictate, we
must accord it a sweep as broad as its language," North Haven Bd.
of Educ. v. Bell, 456 U.S. 512, 521 (1982) (quoting United States
v. Price, 383 U.S. 787, 801 (1966)) (collecting cases) (brackets
in original), the Policy Interpretation limns three major areas
of regulatory compliance:11 "Athletic Financial Assistance
(Scholarships)," see 34 C.F.R. 106.37(c); "Equivalence in Other
Athletic Benefits and Opportunities," see 34 C.F.R.
106.41(c)(2)-(10); and "Effective Accommodation of Student
Interests and Abilities," see 34 C.F.R. 106.41(c)(1). The
court below, see Cohen, 809 F. Supp. at 989, and a number of
other district courts, see, e.g., Roberts v. Colorado State
Univ., F. Supp. , (D. Colo. 1993) [No. 92-Z-1310, slip
op. at 3]; Favia v. Indiana Univ. of Pa., No. 92-2045, 1992 WL
436239, at *7 (W.D. Pa. Feb. 4, 1993), have adopted this
formulation and ruled that a university violates Title IX if it
ineffectively accommodates student interests and abilities
regardless of its performance in other Title IX areas.
Equal opportunity to participate lies at the core of
Title IX's purpose. Because the third compliance area delineates
this heartland, we agree with the district courts that have so
ruled and hold that, with regard to the effective accommodation
11The Manual divides Title IX coverage into the same three
areas and notes that "an investigation may be limited to less
than all three of these major areas." Manual at 7.
16
of students' interests and abilities, an institution can violate
Title IX even if it meets the "financial assistance" and
"athletic equivalence" standards. In other words, an institution
that offers women a smaller number of athletic opportunities than
the statute requires may not rectify that violation simply by
lavishing more resources on those women or achieving equivalence
in other respects.12
3. Measuring Effective Accommodation. The parties
3. Measuring Effective Accommodation.
agree that the third compliance area is the field on which this
appeal must be fought. In surveying the dimensions of this
battleground, that is, whether an athletic program effectively
accommodates students' interests and abilities, the Policy
Interpretation maps a trinitarian model under which the
university must meet at least one of three benchmarks:
(1) Whether intercollegiate level
participation opportunities for male and
female students are provided in numbers
substantially proportionate to their
respective enrollments; or
(2) Where the members of one sex have
been and are underrepresented among
intercollegiate athletes, whether the
institution can show a history and continuing
practice of program expansion which is
demonstrably responsive to the developing
12In any event, both the financial assistance and athletic
equivalence standards are inapposite for present purposes. As to
the former, Brown does not confer athletic scholarships and the
plaintiffs do not allege that Brown has discriminated by gender
in distributing other financial aid. As to the latter, the
district court made only preliminary findings, see Cohen, 809 F.
Supp. at 994-97, on the explicit understanding that it would
revisit compliance vel non with the athletic equivalence standard
at trial. Id. at 997.
17
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 first benchmark furnishes a safe
harbor for those institutions that have distributed athletic
opportunities in numbers "substantially proportionate" to the
gender composition of their student bodies. Thus, a university
which does not wish to engage in extensive compliance analysis
may stay on the sunny side of Title IX simply by maintaining
gender parity between its student body and its athletic lineup.
The second and third parts of the accommodation test
recognize that there are circumstances under which, as a
practical matter, something short of this proportionality is a
satisfactory proxy for gender balance. For example, so long as a
university is continually expanding athletic opportunities in an
ongoing effort to meet the needs of the underrepresented gender,
and persists in this approach as interest and ability levels in
its student body and secondary feeder schools rise, benchmark two
is satisfied and Title IX does not require that the university
leap to complete gender parity in a single bound. Or, if a
school has a student body in which one sex is demonstrably less
interested in athletics, Title IX does not require that the
18
school create teams for, or rain money upon, otherwise
disinterested students; rather, the third benchmark is satisfied
if the underrepresented sex's discernible interests are fully and
effectively accommodated.13
It seems unlikely, even in this day and age, that the
athletic establishments of many coeducational universities
reflect the gender balance of their student bodies.14
Similarly, the recent boom in Title IX suits suggests that, in an
era of fiscal austerity, few universities are prone to expand
athletic opportunities. It is not surprising, then, that schools
more often than not attempt to manage the rigors of Title IX by
satisfying the interests and abilities of the underrepresented
gender, that is, by meeting the third benchmark of the
accommodation test. Yet, this benchmark sets a high standard:
it demands not merely some accommodation, but full and effective
13OCR also lists a series of illustrative justifications for
the disparate treatment of men's and women's athletic teams,
including (1) sports that require more resources because of the
nature of the game (e.g., contact sports generally require more
equipment), (2) special circumstances, such as an influx of
first-year players, that may require an extraordinary infusion of
resources, (3) special operational expenses (e.g., crowd control
at a basketball tournament), as long as special operational
expense needs are met for both genders and (4) affirmative
measures to remedy past limitations on athletic opportunities for
one gender. 44 Fed. Reg. at 71,415-16.
14Success in this regard is, however, attainable. After
Washington State University was ordered to increase participation
opportunities for women to a level equivalent with the percentage
of female undergraduates, see Blair v. Washington State Univ.,
740 P.2d 1379 (Wash. 1987), the University experienced
considerable success in meeting court-ordered goals. See Mary
Jordan, Only One School Meets Gender Equity Goal, Wash. Post,
June 21, 1992, at D1.
19
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.
Although the full-and-effective-accommodation standard
is high, it is not absolute. Even when male athletic
opportunities outnumber female athletic opportunities, and the
university has not met the first benchmark (substantial
statistical proportionality) or the second benchmark (continuing
program expansion) of the accommodation test, the mere fact that
there are some female students interested in a sport does not
ipso facto require the school to provide a varsity team in order
to comply with the third benchmark. Rather, the institution can
satisfy the third benchmark by ensuring participatory
opportunities at the intercollegiate level when, and to the
extent that, there is "sufficient interest and ability among the
members of the excluded sex to sustain a viable team and a
reasonable expectation of intercollegiate competition for that
team . . . ." 44 Fed. Reg. at 71,418. Staying on top of the
problem is not sport for the short-winded: the institution must
remain vigilant, "upgrading the competitive opportunities
available to the historically disadvantaged sex as warranted by
developing abilities among the athletes of that sex," id., until
the opportunities for, and levels of, competition are equivalent
20
by gender.15
Brown argues that DED's Policy Interpretation,
construed as we have just outlined, goes so far afield that it
countervails the enabling legislation. Brown suggests that, to
the extent students' interests in athletics are disproportionate
by gender, colleges should be allowed to meet those interests
incompletely as long as the school's response is in direct
proportion to the comparative levels of interest. Put bluntly,
Brown reads the "full" out of the duty to accommodate "fully and
effectively." It argues instead that an institution
satisfactorily accommodates female athletes if it allocates
athletic opportunities to women in accordance with the ratio of
interested and able women to interested and able men, regardless
of the number of unserved women or the percentage of the student
body that they comprise.
Because this is mountainous terrain, an example may
serve to clarify the distinction between Brown's proposal and our
understanding of the law. Suppose a university (Oooh U.) has a
student body consisting of 1,000 men and 1,000 women, a one to
one ratio. If 500 men and 250 women are able and interested
15If in the course of adding and upgrading teams, a
university attains gender parity between its athletic program and
its student body, it meets the first benchmark of the
accommodation test. But, Title IX does not require that a school
pour ever-increasing sums into its athletic establishment. If a
university prefers to take another route, it can also bring
itself into compliance with the first benchmark of the
accommodation test by subtraction and downgrading, that is, by
reducing opportunities for the overrepresented gender while
keeping opportunities stable for the underrepresented gender (or
reducing them to a much lesser extent).
21
athletes, the ratio of interested men to interested women is two
to one. Brown takes the position that both the actual gender
composition of the student body and whether there is unmet
interest among the underrepresented gender are irrelevant; in
order to satisfy the third benchmark, Oooh U. must only provide
athletic opportunities in line with the two to one interested
athlete ratio, say, 100 slots for men and 50 slots for women.
Under this view, the interest of 200 women would be unmet but
there would be no Title IX violation.
We think that Brown's perception of the Title IX
universe is myopic. The 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. Rather, the law requires that, in the
absence of continuing program expansion (benchmark two), schools
either meet benchmark one by providing athletic opportunities in
proportion to the gender composition of the student body (in Oooh
U.'s case, a roughly equal number of slots for men and women, as
the student body is equally divided), or meet benchmark three by
fully accommodating interested athletes among the
underrepresented sex (providing, at Oooh U., 250 slots for
women).16
16Of course, if Oooh U. takes the benchmark three route, it
will also have to provide at least the same number of slots for
men; but, so long as women remain the underrepresented gender and
their interests are fully accommodated, the university can
provide as many (or as few) additional slots for men as it sees
fit.
22
In the final analysis, Brown's view is wrong on two
scores. It is wrong as a matter of law, for DED's Policy
Interpretation, which requires full accommodation of the
underrepresented gender, draws its essence from the statute.
Whether Brown's concept might be thought more attractive, or
whether we, if writing on a pristine page, would craft the
regulation in a manner different than the agency, are not very
important considerations. Because 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. See
Chevron, 467 U.S. at 843 n.11 (holding that a "court need not
conclude that the agency construction was the only one it
permissibly could have adopted to uphold [it]") (collecting
cases); Massachusetts v. Secretary of Agric., 984 F.2d 514, 522
(1st Cir. 1993) (similar).
Brown's reading of Title IX is legally flawed for yet
another reason. It proceeds from the premise that the agency's
third benchmark countervails Title IX. But, this particular
imprecation of the third benchmark overlooks the accommodation
test's general purpose: to determine whether a student has been
"excluded from participation in, [or] denied the benefits of" an
athletic program "on the basis of sex . . . ." 20 U.S.C.
1681(a). While any single element of this tripartite test, in
isolation, might not achieve the goal set by the statute, the
test as a whole is reasonably constructed to implement the
statute. No more is exigible. See Chemical Mfrs. Ass'n v.
23
Natural Resources Defense Council, Inc., 470 U.S. 116, 125
(1985).
As it happens, Brown's view is also poor policy for, in
the long run, a rule such as Brown advances would likely make it
more difficult for colleges to ensure that they have complied
with Title IX. Given that the survey of interests and abilities
would begin under circumstances where men's athletic teams have a
considerable head start, such a rule would almost certainly blunt
the exhortation that schools should "take into account the
nationally increasing levels of women's interests and abilities"
and avoid "disadvantag[ing] members of an underrepresented sex .
. . ." 44 Fed. Reg. at 71,417.
Brown's proposal would also aggravate the
quantification problems that are inevitably bound up with Title
IX. Student plaintiffs, who carry the burden of proof on this
issue, as well as universities monitoring self-compliance, would
be required to assess the level of interest in both the male and
female student populations and determine comparatively how
completely the university was serving the interests of each sex.
By contrast, as we read the accommodation test's third benchmark,
it requires a relatively simple assessment of whether there is
unmet need in the underrepresented gender that rises to a level
sufficient to warrant a new team or the upgrading of an existing
team. We think the simpler reading is far more serviceable.
Furthermore, by moving away from OCR's third benchmark,
which focuses on the levels of interest and ability extant in the
24
student body, Brown's theory invites thorny questions as to the
appropriate survey population, whether from the university,
typical feeder schools, or the regional community. In that way,
Brown's proposal would do little more than overcomplicate an
already complex equation.
We will not paint the lily. Brown's approach cannot
withstand scrutiny on either legal or policy grounds. We
conclude that DED's Policy Interpretation means exactly what it
says. This plain meaning is a proper, permissible rendition of
the statute.
IV. THE CONSTITUTIONAL CHALLENGE
We turn now to a series of case-specific issues,
starting with Brown's constitutional challenge to the statutory
scheme.
A. Equal Protection.
Brown asseverates that if the third part of the
accommodation test is read as OCR wrote it to require full and
effective accommodation of the underrepresented gender the test
violates the Fifth Amendment's Equal Protection Clause. We think
not.
Brown assumes that full and effective accommodation
disadvantages male athletes.17 While it might well be that
17In characterizing Title IX as benefitting only women,
Brown takes a rather isthmian view of the world at large. After
all, colleges that have converted from exclusively female
enrollment to coeducational enrollment face situations inverse to
Brown's. In such a setting, the men's athletic program may well
be underdeveloped, or underfunded, or both, while fiscal
retrenchment offers no reprieve. Under these circumstances,
25
more men than women at Brown are currently interested in sports,
Brown points to no evidence in the record that men are any more
likely to engage in athletics than women, absent socialization
and disparate opportunities. In the absence of any proof
supporting Brown's claim, and in view of congressional and
administrative urging that women, given the opportunity, will
naturally participate in athletics in numbers equal to men, we do
not find that the regulation, when read in the common-sense
manner that its language suggests, see supra Part III(C)(3),
offends the Fifth Amendment.
What is more, even if we were to assume, for argument's
sake, that the regulation creates a gender classification slanted
somewhat in favor of women, we would find no constitutional
infirmity. It is clear that Congress has broad powers under the
Fifth Amendment to remedy past discrimination. See, e.g., Metro
Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3009 (1990) (noting
that Congress need not make specific findings of discrimination
to grant race-conscious relief); Califano v. Webster, 430 U.S.
313, 317 (1977) (upholding 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"). Despite the little legislative history regarding
discrimination in collegiate athletics that emerged during the
consideration of Title IX, Congress did hold "extensive hearings
Title IX would protect the athletic interests of men as the
underrepresented sex.
26
on higher education" when Title IX was pending, in the course of
which "much testimony was heard with respect to discrimination
against women in higher education." H.R. Rep. No. 554, 92d
Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 2462,
2511. Athletics featured even more prominently in Congress's
decision to reverse the Grove City rule. See supra pp. 8-9.
Under these circumstances, we find Brown's plaint unbecoming.
B. Affirmative Action.
Brown rehashes its equal protection argument and serves
it up as a nominally different dish, arguing that the district
court's preliminary injunction constitutes "affirmative action"
and violates the Equal Protection Clause because the court lacked
a necessary factual predicate to warrant such a step.18 It is,
however, established beyond peradventure that, where no contrary
legislative directive appears, the federal judiciary possesses
the power to grant any appropriate relief on a cause of action
appropriately brought pursuant to a federal statute.19 See
Franklin, 112 S. Ct. at 1035 (upholding damage remedy for Title
18The "authority" that Brown cites in support of this
proposition, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307
(1978) (Powell, J. concurring), in fact suggests the propriety of
affirmative relief where there are judicial findings of a
statutory violation. See id.
19On this point, Brown cannot win even if its basic theories
have merit. If the district court did not engage in the proper
factfinding, then its order constitutes an abuse of its
discretion. If, on the other hand, Title IX does not provide for
equitable relief, the district court will have erred as a matter
of law in choosing a remedy outside the statutory margins. In
either event, given that the statute itself is compatible with
the Equal Protection Clause, Brown cannot prevail on its
constitutional claim.
27
IX violation and noting that prospective relief would be
inadequate); see also Fed. R. Civ. P. 54(c). Hence, this
initiative, too, is bootless.
V. BURDEN OF PROOF
In addition to its constitutional challenges, Brown
questions the district court's allocation of the burden of proof.
It suggests that the analytic model of burden setting and
shifting commonly accepted in Title VII and ADEA cases, see,
e.g., Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973); Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st
Cir. 1991), cert. denied, 112 S. Ct. 2965 (1992), is ripe for
importation into the precincts patrolled by Title IX. We reject
the suggestion.
In our view, there is no need to search for analogies
where, as in the Title IX milieu, the controlling statutes and
regulations are clear. To invoke the prophylaxis of Title IX,
the statute, 20 U.S.C. 1681(b), and the regulations, read
together, require a Title IX plaintiff to show disparity between
the gender composition of the institution's student body and its
athletic program, thereby proving that there is an
underrepresented gender. Then, the plaintiff must show that a
second element unmet interest is present. In other words,
the plaintiff must prove that the underrepresented gender has not
been "fully and effectively accommodated by the present program."
44 Fed. Reg. at 71,418. If the plaintiff carries the devoir of
28
persuasion on these two elements, she has proven her case unless
the university shows, as an affirmative defense, "a history and
continuing practice of program expansion which is demonstrably
responsive to the developing interests and abilities of the
members" of the underrepresented gender. Id.
Over and beyond the express dictates of the applicable
statute and regulations, there is another valid reason for
eschewing the Title VII paradigm in most Title IX cases. The
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.
See Franklin v. Gwinnett County Pub. Sch., 911 F.2d 617, 622
(11th Cir. 1990) (declining to apply Title VII analysis to Title
IX litigation), aff'd, 112 S. Ct. 1028 (1992). Title IX, while
it applies only to schools that receive federal funds, influences
almost all aspects of educational management. In contrast, Title
VII applies to a much wider range of institutions virtually all
employers but targets only employment-related matters.
Moreover, Title IX is largely aspirational on the whole,
affected institutions choose how to accomplish the statutory goal
whereas Title VII is largely peremptory covered employers
must adhere to statutorily prescribed standards. Thus, the
former is a loosely laced buskin, inhospitable to the specialized
choreography of presumption and production upon which the
Burdine/McDonnell Douglas burden-shifting framework depends.
We conclude, therefore, that excepting perhaps in the
29
employment discrimination context, see Lipsett v. University of
P.R., 864 F.2d 881, 897 (1st Cir. 1988) (applying Title VII
standards in Title IX case, but explicitly limiting the crossover
to the employment context), the Title VII burden-of-proof rules
do not apply in Title IX cases.20 Consequently, a Title IX
plaintiff makes out an athletic discrimination case by proving
numerical disparity, coupled with unmet interest, each by a fair
preponderance of the credible evidence, so long as the defendant
does not rebut the plaintiff's showing by adducing preponderant
history-and-practice evidence.
VI. THE PRELIMINARY INJUNCTION
We come at long last to the cynosure of the appeal.
This is familiar territory. A district court, faced with a
motion for preliminary injunction, must assess the request in
four particular ways, evaluating (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, i.e., whether the harm to the movant if the
injunction is withheld outweighs the harm to the nonmovant if the
injunction is granted; and (4) the public interest. See
Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.
1991); Aoude v. Mobil Oil Corp., 862 F.2d 890, 892 (1st Cir.
1988); Hypertherm, Inc. v. Precision Prods., Inc., 832 F.2d 697,
20But cf. Cook v. Colgate Univ., 802 F. Supp. 737, 743
(N.D.N.Y. 1992) (applying Title VII process to Title IX case at
urging of parties). Cook is presently on appeal to the Second
Circuit. See supra note 4.
30
699 & n.2 (1st Cir. 1987). Of course, a district court's
conclusions at the preliminary injunction stage are only attempts
to predict probable outcomes. Thus, "a party losing the battle
on likelihood of success may nonetheless win the war at a
succeeding trial . . . ." Guilbert, 934 F.2d at 6.
If, in conducting this tamisage, the district court has
made no clear error of law or fact, we will overturn its
calibration of the four factors only for a manifest abuse of
discretion. See Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.
1993); Guilbert, 934 F.2d at 5.
Here, the district court found that the quadrat of
factors favored plaintiffs' position. See Cohen, 809 F. Supp. at
985-1001. Brown disagrees with these findings up and down the
line, but offers developed argumentation only as to three of the
four components. Because Brown does not explain its challenge to
the district court's finding that the public interest would be
disserved by leaving the two women's teams on the sidelines until
the suit is finally resolved, we ignore its pro forma protest in
that respect. Litigants cannot preserve an issue for appeal
simply by raising a pennant and then moving on to another
subject. See United States v. Slade, 980 F.2d 27, 30-31 & n.3
(1st Cir. 1992) (reiterating that theories not briefed or argued
on appeal are waived); Ryan v. Royal Ins. Co., 916 F.2d 731, 734
(1st Cir. 1990) (stating that "issues adverted to on appeal in a
perfunctory manner, unaccompanied by some developed
argumentation, are deemed to have been abandoned"). Accordingly,
31
we limit our review to the three factors briefed and argued.
A. Likelihood of Success.
It is old hat, but still very much in fashion, that a
movant's likelihood of success at trial is particularly
influential in the preliminary injunction calculus. See Weaver,
984 F.2d at 12; Guilbert, 934 F.2d at 6; Public Serv. Co. v. Town
of West Newbury, 835 F.2d 380, 383 (1st Cir. 1987). In this
case, the district court paid meticulous attention to the
parties' prospects for success over the long haul. The court
plainly visualized both the factual intricacies and legal
complexities that characterize Title IX litigation. It held a
lengthy adversary hearing and reviewed voluminous written
submissions. And at journey's end, it correctly focused on the
three-part accommodation test.
The court faultlessly dispatched the first two elements
of the test. With respect to the comparison between Brown's
athletic agenda and student body, we adopt the lower court's
record-rooted finding that the University did not meet or even
closely approach the "substantial proportionality" threshold
because it offered too few varsity opportunities for women. See
Cohen, 809 F. Supp. at 991. Cognizant, perhaps, that the raw
numbers tell an unambiguous tale, Brown does not challenge the
inviolability of this finding.
As to the test's second part, the court below found
that, although Brown could point to "impressive growth" in its
women's athletic program in the 1970s, the school had not
32
continued filling the gap during the next two decades. Id. On
this basis, the court concluded that Brown had not met the
benchmark. See id. Brown asserts that the district court erred
by not crediting it sufficiently for its dramatic expansion of
women's sports in the 1970s, and we are not entirely
unsympathetic to this plea. In the last analysis, however, this
was a judgment call and the trial court's judgment was not
unreasonable. While a university deserves appreciable applause
for supercharging a low-voltage athletic program in one burst
rather than powering it up over a longer period, such an
energization, once undertaken, does not forever hold the
institution harmless. Here, Brown labored for six years to weave
a broad array of new activities into the fabric of its palestrian
offerings. The district court apparently believed, however, that
Brown then rested on its laurels for at least twice that long.
The very length of this hiatus suggests something far short of a
continuing practice of program expansion. And, moreover, a
university must design expansion in whatever form and at whatever
pace to respond to the flux and reflux of unserved interests.
The court below found that Brown failed in this task. See id.
The issue of responsiveness is fact-intensive and in most
instances, as here, its resolution will be within the trier's
province. We find no error, therefore, in the district court's
resolution of the second aspect of the accommodation test.
The third benchmark presents a more problematic
scenario. The district court incorrectly held that Brown bore
33
the burden of showing that it had fully and effectively
accommodated the interests and abilities of its women athletes.
See id. at 997. Section 1681(b) requires that the plaintiffs,
rather than the University, prove a shortfall in the full and
effective accommodation of interested female athletes by showing,
initially, both numerical disparity and unmet interest. See
supra Part V. Nonetheless, we do not think that the court's
bevue is fatal. Even when a trial court has misconstrued the
law, an appellate tribunal may avoid remanding if the record is
sufficiently developed and the facts necessary to shape the
proper legal matrix are sufficiently clear. See, e.g., Societe
Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633,
642 (1st Cir. 1992) (coupling district court's factual findings
with correct rule of law); United States v. Mora, 821 F.2d 860,
869 (1st Cir. 1987) (same); see also Cameron v. Tomes, F.2d
, (1st Cir. 1993) [No. 92-1343, slip op. at 14-15] (using
findings of fact made in the framework of an unacceptable legal
analysis to affirm injunctive relief on a different legal
theory).
We find this to be a particularly auspicious setting in
which to employ such a device. Although the full and effective
accommodation of athletic interests is likely to be a complicated
issue where allegedly underrepresented plaintiffs sue to force a
university to create a neoteric team or upgrade the status of a
club team, see, e.g., Cook, 802 F. Supp. at 737, there is
unlikely to be any comparably turbid question as to interest and
34
ability where, as here, plaintiffs are seeking merely to
forestall the interment of healthy varsity teams.
In this instance, the district court's subsidiary
findings of fact render it beyond cavil that the plaintiffs
carried their burden of proof. The court found, for example,
that there was "great interest and talent" amongst Brown's female
undergraduates which, following the cuts, would go unserved.
Cohen, 809 F. Supp. at 992. Of particular moment, the court also
found the interest and talent on campus ample to support women's
varsity volleyball and gymnastics teams, see id. a finding that
is hardly surprising in view of the teams' robust health before
the budget-cutters arrived on the scene. The court proceeded to
note that, while club teams can be equivalent to intercollegiate
teams when they regularly participate in varsity competition, see
44 Fed. Reg. at 71,413 n.1, the teams that Brown downgraded would
not regularly be competing against varsity teams and would suffer
a diminution of status in a wide range of other significant
respects. See Cohen, 809 F. Supp. at 992-93.
The potency of this evidence is an effective antidote
to the district court's partial misapplication of the burden of
proof. Because the record contains nothing that would allow a
trier to find that Brown's athletic agenda reflects the makeup of
its student body or that the plaintiff class is so poorly
populated as to warrant a reduction in women's sports,21 the
21It bears mentioning in this regard that Judge Pettine
heard, and apparently credited, evidence indicating that there
were other women's club teams sufficiently accomplished and
35
court's error was harmless. In a nutshell, the plaintiffs met
their challenge on parts one and three of the accommodation test.
This conclusion, in partnership with the district court's
supportable finding that Brown did not satisfactorily demonstrate
a continuing expansion of its women's athletic lineup, strikes
the gold. The court's prediction of plaintiffs' probable success
was, therefore, adequately grounded.
B. Irreparable Injury.
The next area of inquiry is irreparable harm. The
district court heard from a variety of athletic administration
experts. The court concluded that, absent judicial intervention,
the plaintiffs would suffer irremediable injury in at least three
respects: competitive posture, recruitment, and loss of
coaching. As club teams, the district court thought women's
volleyball and gymnastics would increasingly become less
competitive, have fewer players, be unable to schedule varsity
teams from other schools, become unattractive to potential stars
making college choices, and suffer stagnation in the growth of
individual talent due to the absence of coaching.22 See Cohen,
809 F. Supp. at 992-93. Certainly, these harms exist to some
degree. In highly nuanced cases involving a melange of competing
populated to flourish as varsity squads. Cohen, 809 F. Supp. at
992.
22Brown does not retain coaches for its club teams and few
of the teams have the independent financial wherewithal to hire
coaches. Here, the district court specifically found that if the
gymnastics team was downgraded to club status, it would likely
lose its paid coach when her contract expired in June of 1993.
Cohen, 809 F. Supp. at 992.
36
considerations, the aggregate injury, and whether or not it is
irreparable, come primarily within the trial court's ken. See K-
Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir.
1989) (acknowledging that "[d]istrict courts have broad
discretion to evaluate the irreparability of alleged harm")
(citation omitted). So it is here. Although the types of harms
the court catalogued might not all rise to the same level of
seriousness, the overall record supports, even though it does not
compel, the court's assessment of their cumulative severity.
Given, especially, the lack of any other concinnous remedy
pendente lite, we will not second-guess the district court's
finding of irreparable injury.
C. The Balance of Harms.
Finally, the district court found that the competing
equities weighed in favor of granting the injunction. After
hearing testimony from Brown's Financial Vice-President and its
Associate Athletic Director, the district court concluded that
the cost of the interim injunction would be relatively slight;
and that, in view of discretionary funds already contained in the
Athletic Department budget and a presidential "contingency fund,"
Brown possessed the wherewithal to defray the costs without undue
hardship. See Cohen, 809 F. Supp. at 1000-01. By contrast, the
court noted the volleyball and gymnastics programs' continuing
deterioration in the aftermath of the demotion. See id. at 992-
93. On balance, the court determined that the financial burden
on Brown was tolerable, and, in any event, was overbalanced by
37
the potential harm to the plaintiff class if the court took no
action.
Brown contests the results of this balancing on the
premise that the district court wrongly discounted the testimony
of one of its witnesses and did not adequately consider the
possibility that false hopes might be raised by a preliminary
injunction. It is, however, axiomatic that a district court,
sitting without a jury, may selectively discount testimony as it
weighs conflicting viewpoints and adjudicates the facts. See
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500
(1984); Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991).
This is a trial court's prerogative and, indeed, its duty.
It is similarly fundamental that a preliminary
injunction, by its very nature, is sometimes ephemeral. Hence,
the risk that some observers might read into a temporary
restrainer more than it eventually proves to mean is endemic to
the equitable device and cannot tip the scales against its use in
any particular circumstance. It defies elemental logic to say
that parties who the court has determined will probably succeed
at trial should be denied the interim relief to which they are
entitled because their ultimate victory is less than absolutely
certain.
In fine, the district court did not overspill its
discretion either in taking Brown's self-interested description
of its financial plight with a grain of salt or in limiting the
role that raising false hopes might play in the equitable
38
calculus.
D. Summing Up.
We summarize succinctly, beginning with the probability
of plaintiffs' success. In an era where the practices of higher
education must adjust to stunted revenues, careening costs, and
changing demographics, colleges might well be obliged to curb
spending on programs, like athletics, that do not lie at the
epicenter of their institutional mission. Title IX does not
purport to override financial necessity. Yet, the pruning of
athletic budgets cannot take place solely in comptrollers'
offices, isolated from the legislative and regulatory imperatives
that Title IX imposes.
This case aptly illustrates the point. Brown earnestly
professes that it has done no more than slash women's and men's
athletics by approximately the same degree, and, indeed, the raw
numbers lend partial credence to that characterization.23 But,
Brown's claim overlooks the shortcomings that plagued its program
before it took blade in hand. 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
23We note, however, that while the cuts proposed by Brown
eliminate a roughly equal number of athletic opportunities for
women as for men, those cuts subtract roughly four times more
money from the budget for female pancratiasts than from the
budget for their male counterparts. See supra pp. 4-5. And, as
a noted playwright once observed, "where there is no money, there
is no change of any kind." Moss Hart, Act One (1959).
39
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.
The record reveals that the court below paid heed to
these realities. It properly recognized that even balanced use
of the budget-paring knife runs afoul of Title IX where, as here,
the fruits of a university's athletic program remain ill-
distributed after the trimming takes place. Because the district
court understood this principle, and because its findings of fact
as to the case's probable outcome are based on substantial
evidence, the court's determination that plaintiffs are likely to
succeed on the merits is inexpugnable.
The district court displayed similar dexterity in
touching the other three bases en route to a grant of injunctive
relief: irreparability of injury, the relative weight of
potential harms, and impact on the public interest. The court
found that the harm to the plaintiff class was irremediable,
absent prompt injunctive relief; that the balance of harms
favored such relief; and that the overriding public interest lay
in the firm enforcement of Title IX. In each of these areas, as
in the likelihood-of-success arena, the court made serial
findings that, taken at face value, amply justify injunctive
relief. Because these findings derive adequate support from the
record, the court's decree must stand as long as the specific
40
relief the court ordered was appropriate. It is to this issue
that we now turn.
VII. REMEDIATION
After applying the preliminary injunction standard, the
district court ordered relief pendente lite, temporarily
reinstating the women's volleyball and gymnastics teams. Brown
argues that such specific relief is inappropriate because it
intrudes on Brown's discretion. The point has some cogency. We
are a society that cherishes academic freedom and recognizes that
universities deserve great leeway in their operations. See,
e.g., Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1st
Cir. 1992), petition for cert. filed (Feb. 3, 1993); Lamphere v.
Brown Univ., 875 F.2d 916, 922 (1st Cir. 1989). In addition,
Title IX does not require institutions to fund any particular
number or type of athletic opportunities only that they provide
those opportunities in a nondiscriminatory fashion if they wish
to receive federal funds.
Nonetheless, the district court has broad discretionary
power to take provisional steps restoring the status quo pending
the conclusion of a trial. See Ricci v. Okin, 978 F.2d 764, 767
(1st Cir. 1992); Guilbert, 934 F.2d at 7 & n.3. Considering the
district court's proper estimation and deft application of the
preliminary injunction standard, see supra Part VI, we think that
requiring Brown to maintain the women's volleyball and gymnastics
teams in varsity status for the time being is a remedial choice
within the district court's discretion. That is not to say,
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however, that the same remedy will be suitable at trial's end if
the Title IX charges prove out against Brown. The district court
has noted, we believe appropriately, that if it ultimately finds
Brown's athletic program to violate Title IX, it will initially
require the University to propose a compliance plan rather than
mandate the creation or deletion of particular athletic teams.
Cohen, 809 F. Supp. at 1001. Although the district court has the
power to order specific relief if the institution wishes to
continue receiving federal funds, see Franklin, 112 S. Ct. at
1035, the many routes to Title IX compliance make specific relief
most useful in situations where the institution, after a judicial
determination of noncompliance, demonstrates an unwillingness or
inability to exercise its discretion in a way that brings it into
compliance with Title IX.
VIII. CONCLUSION
We need go no further. This litigation presents an
array of complicated and important issues at a crossroads of the
law that few courts have explored. The beacon by which we must
steer is Congress's unmistakably clear mandate that educational
institutions not use federal monies to perpetuate gender-based
discrimination. At the same time, we must remain sensitive to
the fact that suits of this genre implicate the discretion of
universities to pursue their missions free from governmental
interference and, in the bargain, to deploy increasingly scarce
resources in the most advantageous way. These considerations,
each of which is in service to desirable ends, are necessarily in
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tension in Title IX cases. Thus, there are unlikely to be ideal
solutions to all the vexing problems that might potentially
arise.
This appeal exemplifies many of the difficulties
inherent in Title IX litigation. We do not presume to say that
the district court's interim solution is perfect, but it is fair
and it is lawful. On the record compiled to date, the
preliminary injunction requiring Brown to reinstate its women's
volleyball and gymnastics teams for the time being came well
within the encincture of judicial discretion. We will not
meddle.
The preliminary injunction is affirmed, the temporary
stay is dissolved, and the cause is remanded to the district
court for further proceedings. Costs to appellees.
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