Appeal from the United States District Courtfor the Eastern District of CaliforniaRobert E. Coyle, Chief District Judge, PresidingArgued and SubmittedNovember 4, 1999--San Francisco, CaliforniaFiled December 15, 1999Before: William C. Canby, Jr., Cynthia Holcomb Hall, andSusan P. Graber, Circuit Judges.Opinion by Judge Hall
_____________________________COUNSEL Peter W. Davis, Crosby, Heafey, Roach & May, San Fran-cisco, California, for the defendants-appellants.Mark Martel, Palo Alto, California, for the plaintiffs-appellees.Josephine R. Potuto, University of Nebraska College of Law,Lincoln, Nebraska, for the amici.
_____________________________OPINION HALL, Circuit Judge:The instant case requires us to consider whether Title IXprevents a university in which male students occupy a dispro-portionately high percentage of athletic roster spots frommaking gender-conscious decisions to reduce the proportionof roster spots assigned to men. We hold that Title IX doesnot bar such remedial actions.The Board of Trustees of the California State Universitiesand other defendants appeal from the district court's ordergranting the motion of Neal and other plaintiffs for a prelimi-nary injunction. Neal's suit alleged that the decision of Cali-fornia State University, Bakersfield ("CSUB") to reduce thenumber of spots on its men's wrestling team, undertaken aspart of a university-wide program to achieve "substantialproportionality" between each gender's participation in var-sity sports and its composition in the campus's student body,violated Title IX and the Equal Protection Clause of theUnited States Constitution. The district court determined thatregulations promulgated pursuant to Title IX, and CSUB'sprogram, which was modeled after those regulations, violatedTitle IX. The district court declined to reach the merits of theconstitutional challenge, but did hold that the regulationsinterpreting Title IX "raised serious constitutional questions"and rejected Plaintiffs' construction of Title IX on that alter-native ground. This Court has jurisdiction to review the dis-trict court's granting of a preliminary injunction under 28U.S.C. S 1292(a)(1). We reverse, and vacate the injunction.I.Defendant/Appellant CSUB is a large public universitywhere female students outnumbered male students by roughly64% to 36% in 1996. The composition of CSUB's varsity ath-letic rosters, however, was quite different. In the 1992-93 aca-demic year, male students took 61% of the university's spotson athletic rosters and received 68% of CSUB's available ath-letic scholarship money.This imbalance helped prompt a lawsuit by the Californiachapter of the National Organization for Women, alleging thatthe California State University system was violating a statelaw that is similar to the federal government's Title IX. Thatlawsuit eventually settled, resulting in a consent decree man-dating, inter alia, that each Cal State campus have a propor-tion of female athletes that was within five percentage pointsof the proportion of female undergraduate students at thatschool. This portion of the consent decree was patterned afterthe first part of the three-part Title IX compliance test promul-gated by the Department of Education's Office for CivilRights ("OCR").When the university agreed to the consent decree, Califor-nia was slowly emerging from a recession, and state fundingfor higher education was declining. As a result, CSUB admin-istrators were seriously constrained in what they could spendon athletic programs. The university chose to adopt squad sizetargets, which would encourage the expansion of the women'steams while limiting the size of the men's teams. In order tocomply with the consent decree, CSUB opted for smallermen's teams across the board, rejecting the alternative ofeliminating some men's teams entirely. CSUB's plan wasdesigned to bring it into compliance with the consent decreeby the 1997-98 academic year, meaning that female studentswould fill at least 55% of the spaces on the school's athleticteams.1As part of this across-the-board reduction in the number ofslots available to men's athletic teams, the size of the men'swrestling team was capped at 27. Although the reduction wasprotested vigorously by wrestling coach Terry Kerr, and teamcaptain Stephen Neal expressed concerns that a smaller squadwould prove less competitive, the smaller CSUB team per-formed exceptionally well, winning the Pac-10 Conferencetitle and finishing third in the nation in 1996. In 1996-97, themen's wrestling roster was capped at 25, and four of thesespots went unused. Nevertheless, in response to the rumoredelimination of the men's wrestling team, on January 10, 1997,the team filed the instant lawsuit, alleging that the university'spolicy capping the size of the men's team constituted discrim-ination on the basis of gender in violation of Title IX and theEqual Protection Clause of the Federal Constitution.The team sought declaratory and injunctive relief to preventthe squad size reductions. CSUB responded by filing a motionto dismiss. The district court initially granted a temporaryrestraining order preventing the reductions, then granted apreliminary injunction to prevent CSUB from reducing thesize of the wrestling team. The district court concluded as amatter of fact that CSUB's primary motivation for cappingthe size of the men's teams was to meet the gender propor-tionality requirements in the consent decree. The district courtconcluded as a matter of law that capping the male teams inorder to comply with the consent decree violated Title IX.Although the district court refused to rule on Plaintiffs' equalprotection challenge to the CSUB policy, the court did rejecta reading of Title IX that created a "safe harbor " for anyschool that achieved substantial proportionality between thepercentage of athletes of one gender and the percentage ofstudents of that same gender. The court concluded that suchan approach would raise serious questions under the EqualProtection Clause, and that a desire to avoid reaching suchquestions, in and of itself, constituted "ample reason forrejecting the safe harbor idea as part of Title IX."II.On appeal, this Court reviews the district court's grant ofa preliminary injunction for abuse of discretion, and "that dis-cretion is abused where the district court based its ruling onan erroneous view of the law or on a clearly erroneous assess-ment of the evidence." Roe v. Anderson, 134 F.3d 1400, 1402(9th Cir. 1998) (citation and internal quotation marks omit-ted), aff'd sub nom. Saenz v. Roe, 119 S. Ct. 1518 (1999). Thedistrict court's interpretation of Title IX is reviewed de novo.See Bay Area Addiction Research & Treatment, Inc. v. Cityof Antioch, 179 F.3d 725, 730 (9th Cir. 1999).III.This case has its origins in Congress's passage of Title IXin 1972. Title IX was Congress's response to significant con-cerns about discrimination against women in education. SeeNorth Haven Bd. of Educ. v. Bell,
456 U.S. 512
, 523-524 &n.13 (1982). In the words of the legislation's primary sponsor,Senator Birch Bayh, Title IX was enacted to "provide for thewomen of America something that is rightfully theirs -- anequal chance to attend the schools of their choice, to developthe skills they want, and to apply those skills with the knowl-edge that they will have a fair chance to secure the jobs oftheir choice with equal pay for equal work." 118 Cong. Rec.5808 (1972); see also Bell,
456 U.S. at 526
-27 ("SenatorBayh's remarks, as those of the sponsor of the language ulti-mately enacted, are an authoritative guide to the statute's con-struction . . . . And, because SS 901 and 902 originated as afloor amendment . . . Senator Bayh's statements -- whichwere made on the same day the amendment was passed .. .are the only authoritative indications of congressional intentregarding the scope of SS 901 and 902.").The regulations promulgated pursuant to Title IX requireschools receiving federal funding to "provide equal athleticopportunity for members of both sexes". 34 C.F.R.S 106.41(c). In evaluating schools' compliance with that pro-vision, one factor that will be considered is "whether theselection of sports and levels of competition effectivelyaccommodate the interests and abilities of members of bothsexes". Id. at S 106.41(c)(1). At the same time, "it wouldrequire blinders to ignore that the motivation for promulgationof the regulation on athletics was the historic emphasis onboys' athletic programs to the exclusion of girls' athletic pro-grams in . . . colleges." Williams v. School Dist. of Bethlehem,998 F.2d 168, 175 (3d Cir. 1993). The drafters of these regu-lations recognized a situation that Congress well understood:Male athletes had been given an enormous head start in therace against their female counterparts for athletic resources,and Title IX would prompt universities to level the proverbialplaying field.Appellees recognize that, given this backdrop, it would beimprudent to argue that Title IX prohibits the use of allgender-conscious remedies. Appellees therefore suggest thatgender-conscious remedies are appropriate only when neces-sary to ensure that schools provide opportunities to males andfemales in proportion to their relative levels of interest insports participation. By contrast, Appellants contend thatschools may make gender-conscious decisions about sports-funding levels to correct for an imbalance between the com-position of the undergraduate student body and the composi-tion of the undergraduate student athletic participants pool.This disagreement has real significance: Men's expressedinterest in participating in varsity sports is apparently higherthan women's at the present time -- although the "interestgap" continues to narrow -- so permitting gender-consciousremedies until the proportions of students and athletes areroughly proportional gives universities more remedial free-dom than permitting remedies only until expressed interestand varsity roster spots correspond.Appellees' argument that equal opportunity is achievedwhen each gender's athletic participation roughly matches itsinterest in participating is hardly novel. Several courts ofappeals have considered and rejected Appellees' approach asfundamentally inconsistent with the purpose of Title IX.Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993)("Cohen I"),2 was the first case to rule on the issues raised inthe instant appeal. In Cohen I, female members of Brown'svolleyball and gymnastics teams brought suit under Title IXafter the university eliminated their teams. Women comprised48% of the school's student body, but less than 37% of theathletes on campus. See id. at 892.The Cohen I court interpreted Title IX's requirements inlight of the three-part test set forth in the Policy Interpretationpromulgated by the Department of Health, Education, andWelfare in 1979.3 That test is used to assess whether aschool's athletic program is in compliance with Title IX. Auniversity's athletics program is Title IX-compliant if it satis-fies one of the following conditions: . . . [I]ntercollegiate level participation opportunities for male and female students are provided in num- bers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, . . . the institution can show a history and continuing practice of program expansion which is demonstra- bly responsive to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepre- sented among intercollegiate athletes, and the institu- tion cannot show a continuing practice of program expansion such as that cited above, . . . 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. 71,418 (1979). Appellees attack only the firstpart of this test, which declares a university Title IX-compliant if participation levels for each gender are"substantially proportionate" to their representation in the stu-dent body.The Cohen I court explicitly rejected Brown's argumentthat, because male athletes were more interested in athletics,the school could bring itself into Title IX compliance by pro-viding females with fewer athletic roster spots "as long as theschool's response is in direct proportion to the comparativelevels of interest." Cohen I, 991 F.2d at 899. In Cohen II, therejection of Brown's argument was even more emphatic:"Brown's relative interests approach cannot withstand scru-tiny on either legal or policy grounds, because it disadvan-tages women and undermines the remedial purposes of TitleIX by limiting required program expansion for the underre-presented sex to the status quo level of relative interests."Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996)("Cohen II") (citations and internal quotations marks omit-ted).[1] Under Cohen I, if a university wanted to comply withthe first part of the three-part test, it had to provide "athleticsopportunities in proportion to the gender composition of thestudent body," not in proportion to the expressed interests ofmen and women. Id. at 176; see also Favia v. Indiana Univ.of Penn., 7 F.3d 332, 343 (3d Cir. 1993) (observing that a uni-versity whose student body was 56% female, but whose ath-letic teams were 43% female, would "appear not to be in TitleIX compliance"). The reason for Cohen I's rejection ofBrown's/Appellees' "interest" test was clear enough: "Giventhat the survey of interests and abilities would begin undercircumstances where men's athletic teams have a considerablehead start, such a rule would almost certainly blunt the exhor-tation that schools should `take into account the nationallyincreasing levels of women's interests and abilities' and avoid`disadvantag[ing] members of an underrepresented sex . . . .' "991 F.2d at 900 (quoting 44 Fed. Reg. at 71,417). In otherwords, Appellees' interpretation of Title IX would haveallowed universities to do little or nothing to equalize men'sand women's opportunities if they could point to data show-ing that women were less interested in sports. But a centralaspect of Title IX's purpose was to encourage women to par-ticipate in sports: The increased number of roster spots andscholarships reserved for women would gradually increasedemand among women for those roster spots and scholarships.4As the First Circuit held in Cohen II, "[t]o assert that Title IXpermits institutions to provide fewer athletics participationopportunities for women than for men, based upon the prem-ise that women are less interested in sports than are men, is(among other things) to ignore the fact that Title IX wasenacted in order to remedy discrimination that results fromstereotyped notions of women's interests and abilities."Cohen II, 101 F.3d at 178-79; cf. Horner v. Kentucky HighSch. Athletic Ass'n, 43 F.3d 265, 272 (6th Cir. 1994)("Moreover, while reliance on the interest of the memberschools in adding a sanctioned sport may appear to be gender-neutral, it is a method which has great potential for perpetuat-ing gender-based discrimination. Under the district court'sreasoning, a school system's compliance with Title IX can bemeasured by the personal views of administrators of individ-ual schools, irrespective of whether these views achieve TitleIX's equal opportunity requirement.").Appellees and the district court relied heavily on a lone dis-trict court opinion, Pederson v. Louisiana State Univ., 912 F.Supp. 892 (M.D. La. 1996), which criticized the Policy Inter-pretation test's first part. However, this criticism is entirelydicta: The court still found Louisiana State University("LSU") to be in violation of Title IX and ordered it to bringitself into Title IX compliance immediately, hinting that itshould do so by funding women's soccer and softball teams.See id. at 922. The court never addressed the issue of whetherLSU could bring itself into Title IX compliance by cutting theopportunities available to male athletes because the partiesthere never suggested such an approach. Moreover, thePederson court misunderstood the reasoning behind Cohen,Roberts, and Horner. The Pederson court held that these cir-cuit court opinions relied upon an erroneous assumption thatmen and women were equally interested in playing sports. Seeid. at 913-14. As is explained above, those courts emphasizedthat women's interest in sports appeared to be lower thanmen's, but that the genders' interests were slowly but surelyconverging, which was precisely the reason why requiringonly that each gender's expressed interest in participating beaccommodated equally would freeze the inequality of the sta-tus quo.[2] Title IX is a dynamic statute, not a static one. It envi-sions continuing progress toward the goal of equal opportu-nity for all athletes and recognizes that, where society hasconditioned women to expect less than their fair share of theathletic opportunities, women's interest in participating insports will not rise to a par with men's overnight. The per-centage of college athletes who are women rose from 15% in1972 to 37% in 1998, and Title IX is at least partially respon-sible for this trend of increased participation by women. SeeTrudy Saunders Bredthauer, Twenty-Five Years Under TitleIX: Have We Made Progress?, 31 Creighton L. Rev. 1107,1107 (1998). Title IX has altered women's preferences, mak-ing them more interested in sports, and more likely to becomestudent athletes. See Note, Cheering on Women and Girls inSports: Using Title IX to Fight Gender Role Oppression, 110Harv. L. Rev. 1627, 1640-41 (1997). Adopting Appellees'interest-based test for Title IX compliance would hinder, andquite possibly reverse, the steady increases in women's partic-ipation and interest in sports that have followed Title IX'senactment.5[3] A number of courts of appeals have addressed anotherpotentially dispositive issue in this appeal -- namely, whetherTitle IX permits a university to diminish athletic opportunitiesavailable to men so as to bring them into line with the lowerathletic opportunities available to women. Every court, inconstruing the Policy Interpretation and the text of Title IX,has held that a university may bring itself into Title IX com-pliance by increasing athletic opportunities for the underre-presented gender (women in this case) or by decreasingathletic opportunities for the overrepresented gender (men inthis case). See Horner, 43 F.3d at 275; Kelley v. Board ofTrustees, 35 F.3d 265, 269 (7th Cir. 1994); Roberts v. Colo-rado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir. 1993)("We recognize that in times of economic hardship, fewschools will be able to satisfy Title IX's effective accommo-dation requirement by continuing to expand their women'sathletics programs. . . . Financially strapped institutions maystill comply with Title IX by cutting athletic programs suchthat men's and women's athletic participation rates becomesubstantially proportionate to their representation in theundergraduate population."); Cohen I, 991 F.2d at 898 n.15("Title IX does not require that a school pour ever-increasingsums into its athletic establishment. If a university prefers totake another route, it can also bring itself into compliancewith the first benchmark of the accommodation test by sub-traction and downgrading, that is, by reducing opportunitiesfor the overrepresented gender while keeping opportunitiesstable for the underrepresented gender (or reducing them to amuch lesser extent)."). An extensive survey of Title IX's leg-islative history and the regulations promulgated to apply itsprovisions to college athletics concluded that boosters of malesports argued vociferously before Congress that the proposedregulations would require schools to shift resources frommen's programs to women's programs, but that Congress nev-ertheless sided "with women's advocates" by deciding not torepeal the HEW's athletics-related Title IX regulations. MaryJo Festle, Playing Nice: Politics and Apologies in Women'sSports 171-76 (1996). Congress thus appears to have believedthat Title IX would result in funding reductions to male ath-letic programs. If a university wishes to comply with Title IXby leveling down programs instead of ratcheting them up, asAppellant has done here, Title IX is not offended.[4] There is a second reason why a reversal of the districtcourt's order granting injunctive relief on the Title IX claimis warranted. The district court failed to defer properly to theinterpretation of Title IX put forward by the administrativeagency that is explicitly authorized to enforce its provisions.It is well-established that the federal courts are to defer sub-stantially to an agency's interpretation of its own regulations.See Martin v. Occupational Safety & Health Review Comm'n,
499 U.S. 144, 150
(1991). The Department of Education,"acting through its OCR [is] the administrative agencycharged with administering Title IX." Cohen I, 991 F.2d at895. In this instance, Congress explicitly delegated to theagency the task of prescribing standards for athletic programsunder Title IX. See Pub. L. No. 93-380,S 844, 88 Stat. 612(1974); Kelley, 35 F.3d at 269 n.3; Roberts, 998 F.2d at 828;Cohen I, 991 F.2d at 895. Under Chevron, where Congresshas expressly delegated to an agency the power to "elucidatea specific provision of the statute by regulation," that agen-cy's regulations should be accorded "controlling weightunless they are arbitrary, capricious, or manifestly contrary tothe statute." Chevron USA v. NRDC,
467 U.S. 837
, 843-44(1984).[5] Appellees deem Chevron inapplicable on the groundthat OCR's interpretation violates the plain meaning of thestatute.6 Under their interpretation, Title IX bars universitiesfrom disadvantaging any student athlete on the basis of his orher gender. But the plain meaning of the nondiscriminationprinciple set forth in 20 U.S.C. S 1681(a) does not bar reme-dial actions designed to achieve substantial proportionalitybetween athletic rosters and student bodies. Indeed, Appel-lees' interpretation of 20 U.S.C. S 1681(a)'s plain meaningwould render 1681(b) superfluous. After all, S 1681(b) statesthat Title IX does not require any education institution to grant preferential or dis- parate 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 . . . .7If S 1681(a) already bars the type of remedial action thatAppellant engaged in pursuant to the consent decree, thenS 1681(b)'s provision that Title IX does not require suchremedial action would be mere surplusage. "Statutes must beinterpreted, if possible, to give each word some operativeeffect." Walters v. Metropolitan Educ. Enters., Inc., 519 U.S.202, 209 (1997).Moreover, we deem it highly instructive that, at oral argu-ment, Appellees conceded that their proposed interpretation ofTitle IX, whereby a university could permissibly discriminateon the basis of sex in order to ensure that each gender's inter-ests in athletic participation were equally accommodated, isjust as contrary to 1681(a)'s purported plain meaning as theinterpretation advanced by the OCR and Appellants is.[6] We also note that Appellees' interpretation of Title IX'stext has been rejected explicitly by the Seventh Circuit, seeKelley, 35 F.3d at 270, as well as the OCR, and implicitlyrejected by the other circuits that have held that a school maycut the number of male athletic slots in order to bring itselfinto compliance with Title IX. See Horner, 43 F.3d at 275;Roberts, 998 F.2d at 830; Cohen I, 991 F.2d at 898 n.15.Under such circumstances, it is clear that OCR's interpreta-tion of Title IX's athletics provisions merits deference underMartin and Chevron. In Cohen II and Kelley the courts heldthat 34 C.F.R. S 106.41 deserved controlling weight underChevron and that the OCR Policy Interpretation deserved sub-stantial deference under Martin. See Cohen II, 101 F.3d at173; Kelley, 35 F.3d at 270-71; see also Favia v. IndianaUniv. of Penn., 812 F. Supp. 578, 584 (W.D. Pa.) (holdingthat "OCR's policy interpretation deserves our greatdeference" under Chevron), aff'd 7 F.3d 332 (3d Cir. 1993).Similarly, in the case before us, the 1996 OCR Clarificationand the Cantu letter explaining it merit deference underMartin. These clarifications essentially adopted the reasoningof Cohen I as OCR policy. Under these clarifications' clearwording, an institution in which male athletes are overrepre-sented can bring itself into Title IX compliance by reducingsufficiently the number of roster spots available to men.Finally, the district court below rejected the interpretationof Title IX advocated by the OCR and Appellants on theground that such a reading of the statute might violate theConstitution. In the court's words, OCR's interpretationwould effectively transform Title IX from an anti- discrimination statute to a statute enacted to remedy past discrimination, thus subjecting it to heightened scrutiny. Without speculating whether Title IX would survive such searching constitutional scrutiny, the court notes that it remains unsatisfied with the Cohen majority's treatment of these important ques- tions. The court is satisfied that avoiding serious constitutional questions such as an equal protection challenge to a very important Congressional statute is itself ample reason for rejecting the safe harbor idea as part of Title IX.The district court thus strained to interpret Title IX in a waythat ostensibly would avoid these concerns. In doing so, it fol-lowed the interpretive methodology laid out by the SupremeCourt in NLRB v. Catholic Bishop of Chicago,
440 U.S. 490
(1979). Chief Justice Burger, writing for the Catholic Bishopmajority, announced that the Court would decline to construean act of Congress "in a manner that could in turn call uponthe Court to resolve difficult and sensitive questions arisingout of the guarantees of the First Amendment ReligiousClauses." Id. at 507; see also Edward J. DeBartolo Corp. v.Florida Gulf Coast Bldg. & Constr. Trades Council , 485 U.S.568, 575 (1988) ("[W]here an otherwise acceptable construc-tion of a statute would raise serious constitutional problems,the Court will construe the statute to avoid such problemsunless such construction is plainly contrary to the intent ofCongress."); William N. Eskridge, Jr. & Philip P. Frickey,Legislation: Statutes and the Creation of Public Policy 675-87 (2d ed. 1995) (discussing Catholic Bishop and the canonof construing statutes so as to avoid constitutional problems).Under Catholic Bishop, the inquiry properly raised on appealis not whether the OCR's interpretation of Title IX is uncon-stitutional, but whether it "raises serious constitutionalquestions." We answer that question in the negative.The First and Seventh Circuits both have considered atlength the constitutionality of the first prong of the OCR'stest. In Cohen I, 991 F.2d at 899-901; Cohen II, 101 F.3d at181-84; and Kelley, 35 F.3d at 272-73, the courts emphati-cally rejected the claim that the Policy Interpretation wasunconstitutional under the Fourteenth Amendment. The sepa-rate reasoning in the two Cohen opinions is particularly well-developed. It applied intermediate scrutiny, which we wouldalso do were we addressing the constitutional merits. SeeCoalition for Econ. Equity v. Wilson, 122 F.3d 692, 702 (9thCir. 1997) ("When the government classifies by gender, itmust demonstrate that the classification is substantiallyrelated to an important governmental interest, requiring an`exceedingly persuasive' justification."). Cohen II noted thatthe Policy Interpretation furthered the "clearly important"objectives of "avoid[ing] the use of federal resources to sup-port discriminatory practices, and provid[ing ] individual citi-zens effective protection against those practices. " 101 F.3d at184 (citation and internal quotations omitted). Moreover, itfound that "judicial enforcement of federal anti-discriminationstatutes is at least an important governmental objective." Id.And Cohen II held that the district court's relief, which wasessentially identical to what the OCR Policy Interpretationcalls for, was "clearly substantially related" to these objec-tives. Id. Along the same lines, the Seventh Circuit has heldthat "the remedial scheme established by Title IX and theapplicable regulation and policy interpretation are clearly sub-stantially related to" the objective of prohibiting "educationalinstitutions from discriminating on the basis of sex." Kelley,35 F.3d at 272. We adopt the reasoning of Cohen I, Cohen II,and Kelley, and hold that the constitutional analysis containedtherein persuasively disposes of any serious constitutionalconcerns that might be raised in relation to the OCR PolicyInterpretation.8 The district court's final basis for rejecting theOCR's interpretation of Title IX was therefore erroneous.IV.This past summer, 90,185 enthusiastic fans crowded intoPasadena's historic Rose Bowl for the finals of the Women'sWorld Cup soccer match. An estimated 40 million televisionviewers also tuned in to watch a thrilling battle between theAmerican and Chinese teams. The match ended when Ameri-can defender Brandi Chastain fired the ball past Chinese goal-keeper Gao Hong, breaking a 4-4 shootout tie. See GrantWahl, Out of this World with the Cup on the Line, A Last-Second Hunch and a Clutch Left Foot Lifted the U.S. to aBreathtaking Victory over China, Sports Illustrated, July 19,1999, at 38. The victory sparked a national celebration and arealization by many that women's sports could be just asexciting, competitive, and lucrative as men's sports. And thevictorious athletes understood as well as anyone the connec-tion between a 27-year-old statute and tangible progress inwomen's athletics. See Scott M. Reid, Title IX Scores Big forU.S. Soccer, Orange County Reg., July 6, 1999, at D1 (quot-ing Chastain's statement that "all of this is because of TitleIX"); Patrick Hruby, On Top of the World Scurry Saves Day,Chastain Wins It for U.S., Wash. Times, July 11, 1999, at A1(quoting defender Kate Sobrero's statement that "we're allTitle IX babies, and this shows it's working"). Title IX hasenhanced, and will continue to enhance, women's opportuni-ties to enjoy the thrill of victory, the agony of defeat, and themany tangible benefits that flow from just being given achance to participate in intercollegiate athletics. Today wejoin our sister circuits in holding that Title IX does not baruniversities from taking steps to ensure that women areapproximately as well represented in sports programs as theyare in student bodies. We REVERSE, and VACATE the pre-liminary injunction.
___________________________FOOTNOTES 1 This figure assumed 60% female enrollment for that year.2 The First Circuit numbers the Cohen decisions differently. Because wediscuss only two opinions, we refer to them as Cohen I and Cohen II.3 The OCR later was authorized by Congress to issue Title IX's regula-tions with respect to athletic opportunities. See Pub. L. No. 93-380, 88Stat. 612 (1974).4 That is, the creation of additional athletic spots for women wouldprompt universities to recruit more female athletes, in the long run shiftingwomen's demand curve for sports participation. As more women partici-pated, social norms discouraging women's participation in sports presum-ably would be further eroded, prompting additional increases in women'sparticipation levels. Cf. Note, Cheering on Women and Girls in Sports:Using Title IX to Fight Gender Role Oppression, 110 Harv. L. Rev. 1627,1640 (1997) ("In effect, the `substantially proportionate' approach recog-nizes that women's attitudes toward sports are socially constructed andhave been limited by discrimination and gender stereotypes. Congresspassed Title IX to combat such discrimination and stereotypes, therebychanging the social environment in which girls and women develop, or donot develop, interests in sports.").5 We also view as instructive this Court's precedent in Jeldness v.Pearce, 30 F.3d 1220 (9th Cir. 1994). That case involved a Title IX suitbrought by female prisoners that challenged the lack of vocational educa-tional programs in women's facilities relative to those available in men'sfacilities. Although the regulations at issue in Jeldness are different fromthose at issue here, the prison context is somewhat analogous because, aswith college athletic teams, "sex segregation is the accepted norm" in pris-ons. Id. at 1228. In Jeldness, we rejected the view that differing interestlevels among the genders would justify providing women with signifi-cantly fewer educational opportunities than men. See id. at 1229.6 20 U.S.C. S 1681(a) reads: 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 . . . .7 Because the OCR's three-part test gives universities two avenues otherthan substantial proportionality for bringing themselves into Title IX com-pliance, it does not conflict with S 1681(b).8 The amicus brief filed by USA Wrestling and a number of other orga-nizations repeatedly invokes the Adarand line of cases and Title VII pre-cedents to suggest that the scope of remedial action to correct fordisparities among groups is quite limited. Those precedents are not rele-vant in the context of collegiate athletics. Unlike most employment set-tings, athletic teams are gender segregated, and universities must decidebeforehand how many athletic opportunities they will allocate to each sex.As a result, determining whether discrimination exists in athletic programsrequires gender-conscious, group-wide comparisons. Because men are not`qualified' for women's teams (and vice versa), athletics require a genderconscious allocation of opportunities in the first instance. The paradigmthat has motivated the Supreme Court's more recent reverse-discrimination jurisprudence simply does not fit the case at bar. See CohenII, 101 F.3d at 181 ("[W]hile Adarand does make new law, the law itmakes is wholly irrelevant to the disposition of this appeal . . . .").