The prior panel, like Brown, assumed without analysis that 1681(b) applies unequivocally to intercollegiate athletics programs. The majority opinion, however, offers inconsistent guidance with respect to the role of statistics in Title IX claims. at 211, and that [a]lthough the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes, id. Id. See Adarand, 515 U.S. 200, 115 S.Ct. 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. at 993. at 725-28, because [s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy, Wygant, 476 U.S. at 276, 106 S.Ct. 1682. ), aff'd, 7 F.3d 332 (3d Cir.1993). We view Brown's argument that women are less interested than men in participating in intercollegiate athletics, as well as its conclusion that institutions should be required to accommodate the interests and abilities of its female students only to the extent that it accommodates the interests and abilities of its male students, with great suspicion. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 328 women athletes. at 202, 97 S.Ct. In Mora, the plaintiff began clocking into work via fingerprint scan in 2014. 1842, 90 L.Ed.2d 260 (1986) (striking down a collective-bargaining faculty lay-off provision requiring preferential treatment for certain racial minorities); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. at 12. 1817, 1821-22, 18 L.Ed.2d 1010 (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). at 64-66, 71-73, 112 S.Ct. 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. To do so, the school must fully and effectively accommodate the underrepresented gender's interests and abilities, even if that requires it to give the underrepresented gender (in this case, women) what amounts to a larger slice of a shrinking athletic-opportunity pie. Cohen III, 879 F.Supp. Since Cohen II, however, Metro Broadcasting has been overruled, at least in part. The district court also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams were established before 1927, virtually all of the women's varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. We find that the first part of the test is satisfied. at 71,413. Id. Nevertheless, the remedy ordered for a violation of a federal anti-discrimination statute is still subject to equal protection review, assuming that it constitutes gender-conscious government action. See Cohen v. Brown Univ., 809 F. Supp. 451, 456-57, 50 L.Ed.2d 397 (1976); Mathews v. Lucas, 427 U.S. 495, 505-06, 96 S.Ct. In order to finance the 40 additional women's positions, Brown certainly will not have to eliminate as many as the 213 men's positions that would be cut under Brown's Phase II proposal. The Court also requires a focus on whether the proffered justification is exceedingly persuasive. Id. What stimulated this remarkable change in the quality of women's athletic competition was not a sudden, anomalous upsurge in women's interest in sports, but the enforcement of Title IX's mandate of gender equity in sports. The easy answer lies in ordering Brown to comply with prong three by upgrading the women's gymnastics, fencing, skiing, and water polo teams to university-funded varsity status. . 44 Fed.Reg. It is clearly in the best interest of both the male and the female athletes to have an increase in women's opportunities and a small decrease in men's opportunities, if necessary, rather than, as under Brown's plan, no increase in women's opportunities and a large decrease in men's opportunities. The case is now before us on appeal from the merits and we must review it accordingly. 1681(b) (West 1990) (emphasis added). Appellant's Br. Benjamin D. Brown is a partner at Cohen Milstein and co-chair of the Antitrust practice group. We think it clear that neither the Title IX framework nor the district court's interpretation of it mandates a gender-based quota scheme. Because the precise questions presented regarding the proper interpretation of the Title IX framework were considered and decided by a panel of this court in the prior appeal, and because no exception to the law of the case doctrine is presented, we have no occasion to reopen the issue here. the ratio of women athlete in Brown University in 1991. 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. at 2726-27 (construing the prohibition against race discrimination contained in 703(a) and (d) of Title VII, and concluding that an interpretation of the sections that forbade all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected) (internal quotation marks and citations omitted); id. Like other anti-discrimination statutory schemes, the Title IX regime permits affirmative action.11 In addition, Title IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the existence of discrimination. In short, the substantial proportionality test is but one aspect of the inquiry into whether an institution's athletics program complies with Title IX. 6. Applying the second prong of the intermediate scrutiny test, we find that the means employed by the district court in fashioning relief for the statutory violation are clearly substantially related to these important objectives. 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. at 898. 3221, 77 L.Ed.2d 866 (1983), agreed that injunctive relief and other equitable remedies are appropriate for violations of Title VI. This case presents the issue of the legality of a federal district court's determination, based upon adjudicated findings of fact, that a federal anti-discrimination statute has been violated, and of the statutory and constitutional propriety of the judicial remedy ordered to provide redress to plaintiffs with standing who have been injured by the violation. 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. The district court's narrow, literal interpretation should be rejected because prong three cannot be read in isolation. 17. To do so, the University must disregard the expressed athletic interests of one gender while providing advantages for others. v. Bell, 456 U.S. 512, 523 n. 13, 102 S.Ct. at 901 (citing Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. See, e.g., Mississippi Univ. at 3026 (emphasis added). at n. 47. What is important for our purposes is that the Supreme Court appears to have elevated the test applicable to sex discrimination cases to require an exceedingly persuasive justification. This is evident from the language of both the majority opinion and the dissent in Virginia. See Cohen II, 991 F.2d at 902 (citing Lipsett v. University of P.R., 864 F.2d 881, 897 (1st Cir.1988)); but see Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.1995) (Title VII sexual harassment standards applied to Title IX sexual harassment case in non-employment context), cert. 1. See, e.g., Swann v. Charlotte-Mecklenburg Bd. at ----, 115 S.Ct. Thus, the analytical result would be same, even if this were an affirmative action case. Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. of Pa., 7 F.3d 332 (3d Cir.1993); Roberts v. Colorado State Bd. Section 1681(b) provides: Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area. First, notwithstanding Brown's persistent invocation of the inflammatory terms affirmative action, preference, and quota, this is not an affirmative action case. 978 (D.R.I. at 1917-18 (directing that Title IX must be accorded a sweep as broad as its language). Majority Opinion at 179 n. 15. 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 170. 106.37(c) and 106.41(c)]. 44 Fed.Reg. Robinson v Kilvert (1889) The defendants manufactured paper boxes in the cellar of a building which required hot and dry air. After all, the district court itself stated that one of the compliance options available to Brown under Title IX is to demote or eliminate the requisite number of men's positions. Cohen III, 879 F.Supp. at 197-99; accord Kelley, 35 F.3d at 272 (holding that neither the regulation nor the policy interpretation run afoul of the dictates of Title IX). In considering plaintiffs' motion for a preliminary injunction in Cohen I, the district court (i) paid meticulous attention to the parties' prospects for success over the long haul; (ii) plainly visualized both the factual intricacies and legal complexities that characterize Title IX litigation; (iii) held a lengthy adversary hearing and reviewed voluminous written submissions; and (iv) correctly focused on the three-part accommodation test. Cohen II, 991 F.2d at 903. While we acknowledge that the law of the case doctrine is subject to exceptions, we conclude that none applies here, and that the decision rendered by the prior panel in the first appeal is not, as Brown claims, legally defective. Accordingly, we decline Brown's invitation to undertake plenary review of issues decided in the previous appeal and treat Cohen II as controlling authority, dispositive of the core issues raised here. Prior to the trial on the merits that gave rise to this appeal, the district court granted plaintiffs' motion for class certification and denied defendants' motion to dismiss. See Cohen II, 991 F.2d at 895; Cohen III, 879 F.Supp. 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 females than among males; (viii) the NCAA Gender Equity Committee data showing that women across the country participate in athletics at a lower rate than men. We agree with the prior panel and the district court that Brown's relative interests approach cannot withstand scrutiny on either legal or policy grounds, Cohen II, 991 F.2d at 900, because it disadvantages women and undermines the remedial purposes of Title IX by limiting required program expansion for the underrepresented sex to the status quo level of relative interests, Cohen III, 879 F.Supp. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. 71,413, 71,418 (December 11, 1979). 5. Comm'n, 463 U.S. 582, 103 S.Ct. See Hogan, 458 U.S. at 728, 102 S.Ct. 1392, 99 L.Ed.2d 645 (1988); see NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. 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. 1681-1688, provides that 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. 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. a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination . at 1031-33, 1035-37. See 1B James W. Moore et al., Moore's Federal Practice 0.404 [1] (2d ed. Brown v. Martinez: accidentally shot watermelon stealer Discipline Parents and in loco parentis are . Brown simply ignores the fact that it is required to accommodate fully the interests and abilities of the underrepresented gender, not because the three-part test mandates preferential treatment for women ab initio, but because Brown has been found (under prong one) to have allocated its athletics participation opportunities so as to create a significant gender-based disparity with respect to these opportunities, and has failed (under prong two) to show a history and continuing practice of expansion of opportunities for the underrepresented gender. Filed Date: April 9, 1992 . Brown claims error in certain evidentiary rulings made during the trial and in the district court's order of specific relief in place of Brown's proposed compliance plan. Id. 65, 74 L.Ed.2d 66 (1982). at ----, 116 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (upholding a federal district court's imposition on the union a goal for racial minority membership as a remedy for the union's contempt of the court's earlier orders to cease racially discriminatory admissions practices). examining civil rights litigation reform, part 1: qualified immunity 117th congress (2021-2022) at 3008, in upholding against a Fifth Amendment equal protection challenge a benign race-based affirmative action program that was adopted by an agency at the explicit direction of Congress. ), cert. at 29; Reply Br. 15. Whatever may be the merits of adopting strict scrutiny as the standard to be applied to gender-based classifications, it is inappropriate to suggest, as Brown does, that Frontiero compels its application here.Brown's assertion that Adarand obligates this court to apply Croson to its equal protection claim is also incorrect. During the same academic year, Brown's undergraduate enrollment comprised 52.4% (2,951) men and 47.6% (2,683) women. Thus, at the heart of this litigation is the question whether Title IX permits Brown to deny its female students equal opportunity to participate in sports, based upon its unproven assertion that the district court's finding of a significant disparity in athletics opportunities for male and female students reflects, not discrimination in Brown's intercollegiate athletics program, but a lack of interest on the part of its female students that is unrelated to a lack of opportunities. 2097, 2111-12, 132 L.Ed.2d 158 (1995). Cohen II, 991 F.2d at 906; Villanueva, 930 F.2d at 129. Although the district court excluded as full exhibits two studies, the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, it nevertheless permitted Brown's experts to rely on the data contained in these two reports as a basis for their expert opinions.24 Because Brown's experts relied upon the excluded data in providing their opinions on the issue of a gender-based differential in student interest in athletics, the evidence was before the trier of fact and any error was, therefore, harmless. Thus, plaintiffs contended, what appeared to be the even-handed demotions of two men's and two women's teams, in fact, perpetuated Brown's discriminatory treatment of women in the administration of its intercollegiate athletics program. at 71,413. 30. 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. 2282, 2293, 60 L.Ed.2d 870 (1979); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. at 3008. JOINT STATEMENT ISSUED BY THE PARTIES IN COHEN V. BROWN UNIVERSITY. Modified Order of May 4, 1995. To accomplish these objectives, Congress directed all agencies extending financial assistance to educational institutions to develop procedures for terminating financial assistance to institutions that violate Title IX. Snyder v. 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