Biediger v. Quinnipiac University (928 F. Supp. 2d 414, 2013)

RULING ON DEFENDANT’S MOTION TO LIFT INJUNCTION

STEFAN R. UNDERHILL, District Judge.

TABLE OF CONTENTS

I. Introduction............................................................418

II. Findings of Fact ........................................................419

A. Women’s Golf........................................................420

B. Women’s Acrobatics and Tumbling (Formerly Competitive Cheer)..........420

C. Women’s Rugby .....................................................425

D. Women’s Indoor and Outdoor Track....................................428

E. Quinnipiac’s Counting of Athletic Participants............................430

III. Standard of Review......................................................433

A. Standard for Modifying or Dissolving Injunctions.........................433

B. Title IX: Statutory and Regulatory Background .........................435

1. The Statute......................................................435

2. The Regulations..................................................435

3. The Policy Interpretation..........................................436

a. The Three-Part Test.....................'.....................438

b. The Levels-of-Competition Test................................439

4. The Policy Clarifications..........................................440

a. Substantial Proportionality (Prong One of the Three-Part Test).....440

i. “Participants” Defined .................................440

ii. “Participation Opportunities ” Defined....................442

b. Equivalent Competition (Prong One of the Levels-of-Competition Test).................:.........................446

c. Summary....................................................451

IV. Conclusions of Law......................................................452

A. Substantial Proportionality (Prong One of the Three-Part Test)............453

1. Countable “Participation Opportunities”............................453

a. Women’s Golf................................................453

b. Women’s Aero................................................454

i. Recognition by the NCAA or Other Authorities............455

ii. Intrinsic Factors.......................................456

Hi. Extrinsic Factors......................................456

iv. Conclusion............................................457

c. Women’s Rugby..............................................458

i. Recognition by the NCAA or Other Authorities............458

ii. Intrinsic Factors.......................................459

Hi Extrinsic Factors......................................459

iv. Conclusion............................................462

d. Women’s Indoor and Outdoor Track.............................463

i. Runners Who Were Injured and Did Not Compete.........464

ii. Runners Who Quit the Team and Did Not Compete........465

2. Calculating “Substantial Proportionality”...........................466

B. Equivalent Competition (Prong One of the Levels-of-Competition Test).....467

C. Equitable Considerations..............................................471

V. Conclusion....................... ......................................473

I. Introduction

The year 2012 marked the fortieth anniversary of the sex discrimination statute known as Title IX. See Education Amendments of 1972, Pub.L. No. 92-318, Title IX, §§ 901-907, 86 Stat. 235, 373-375 (codified at 20 U.S.C. § 1681 et seq.). Born of congressional concerns about “ ‘massive, persistent patterns of discrimination against women in the academic world,’ ” McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 286 (2d Cir.2004) (quoting 118 CONG. REC. 5804 (1972) (statement of Sen. Bayh)), the law prohibits educational institutions that receive federal funds from engaging in sex-based discrimination in the programs and activities they sponsor, including athletics. In the two score years since its enactment, Title IX has marshaled significant change in public attitudes about, and opportunities for, women in sport. Yet despite that progress, “Title IX has not ended the long history of discrimination against females in sport programs; many educational institutions continue to place male sport programs in a position of superiority.” Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 916 (7th Cir.2012). Indeed, this case demonstrates that, even forty years later, Title IX still has promises to keep.

In March 2009, defendant Quinnipiac University (“Quinnipiac” or the “University”) announced plans to trim its athletics budget for the 2009-10 academic year by, inter alia, eliminating its women’s volleyball team and creating a new varsity women’s sport: competitive cheerleading. Shortly thereafter, the plaintiffs, members of the Quinnipiac women’s volleyball team and their coach, filed suit alleging that Quinnipiac’s proposed actions violated Title IX and the regulations promulgated to enforce it. Although the plaintiffs asserted multiple theories under Title IX, the case was bifurcated so that plaintiffs could proceed to trial on their primary claim first: that Quinnipiac discriminated on the basis of sex in its allocation of athletic participation opportunities.

Following a bench trial in June 2010, I concluded that Quinnipiac discriminated on the basis of sex during the 2009-10 academic year by failing to provide genuine athletic participation opportunities in numbers substantially proportionate to its female undergraduate population. Biediger v. Quinnipiac Univ., 728 F.Supp.2d 62, 64 (D.Conn.2010). That conclusion was principally based on two subsidiary determinations. First, I determined that the University’s competitive cheerleading team did not qualify as a varsity sport for purposes of Title IX and, therefore, its members could not be counted as athletic participants under the statute. Id. at 99-101. Although I indicated that “[c]ompetitive cheer may, some time in the future, qualify as a sport under Title IX,” I ultimately concluded that the activity was, at present, “too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.” Id. at 64. Second, although cross-country, indoor track, and outdoor track are treated as separate sports, I determined that Quinnipiac could not count all female runners who participated in cross-country, indoor track, and outdoor track three separate times. Quinnipiac’s practice of requiring female cross-country runners to participate on the indoor and outdoor track teams, and its treatment of track essentially as an adjunct of cross-country, demonstrated that certain cross-country runners who were injured or red-shirted during the indoor and outdoor track seasons should not be counted under Title IX because their experiences on the track teams did not amount to genuine athletic participation opportunities. Id. at 107-08.

Having found Quinnipiac in violation of Title IX, I permanently enjoined the University from continuing to discriminate against its female students by failing to provide equal athletic participation opportunities. Id. at 114. Because cutting then-current women’s varsity teams would only exacerbate the problem, I also ordered that Quinnipiac not eliminate its women’s volleyball team, at least until the University implemented changes sufficient to bring it into full compliance with Title IX. Id. That decision, and the legal framework it adopted, was later affirmed on appeal. See Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir.2012).

Quinnipiac has now moved to lift the injunction pursuant to Federal Rule of Civil Procedure 60(b). Quinnipiac claims that changes to its athletics program over the past two years have brought the school into statistical compliance with Title IX and, as a result, the injunction should no longer have prospective application. A bench trial on Quinnipiac’s motion was held in June 2012. Based on the trial testimony, the parties’ stipulations, and the admitted exhibits, the following constitutes the court’s findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons explained below, Quinnipiac’s motion to lift the injunction (doc. #225) is DENIED.

II. Findings of Fact

Quinnipiac University is a private, coeducational institution located in Hamden, Connecticut. Quinnipiac is a member of the National Collegiate Athletic Association (“NCAA”), and belongs to the NCAA’s most competitive athletic division: Division I. The University competes in the Northeastern Conference (“NEC”), a regional intercollegiate athletics organization to which ten other Division I schools belong. When this case commenced in 2009, Quinnipiac sponsored seven men’s varsity teams — baseball, basketball, cross-country, ice hockey, lacrosse, soccer, and tennis— alongside twelve women’s varsity teams— basketball, competitive cheerleading, cross-country, field hockey, ice hockey, indoor track and field, lacrosse, outdoor track and field, soccer, softball, tennis, and volleyball.

In response to this court’s July 21, 2010 decision, Quinnipiac implemented the following changes to its athletic program: (1) the addition of a varsity women’s golf team; (2) the further cultivation of competitive cheer as a developing sport, having renamed the activity “acrobatics and tumbling”; (3) the addition of a varsity women’s rugby team; and (4) the adoption of a written policy that no student athlete would be required to join additional teams in order to participate in her sport of choice — or more specifically, that women’s cross-country athletes would no longer be required to participate in women’s indoor and outdoor track. The scope and effect of those changes are examined in some detail below.

A. Women’s Golf

Quinnipiac created a varsity women’s golf team in the 2010-11 academic year. The plaintiffs do not seriously challenge the quality of athletic participation opportunities that women’s golf provides — and for good reason. Golf is a full-fledged NCAA-championship sport, and is universally recognized as providing a legitimate intercollegiate varsity experience. Moreover, as established at trial, Quinnipiac’s golf team appears to enjoy all the trappings of a varsity sport: the team is led by an experienced coach who receives an operating budget from the University; the coach conducts off-campus recruiting; the University provides scholarships to aid in recruiting athletes; the team competes against other collegiate varsity teams; the team practices for competitions; and the University provides athletes on the team with myriad other benefits that come with being a varsity athlete, such as academic support, medical assistance, training, and opportunities for community service.

B. Women’s Acrobatics and Tumbling (Formerly Competitive Cheer)

Throughout the 2010-11 and 2011-12 academic years, the University has continued to develop its competitive cheerleading program, which, as noted above, has now been denominated “acrobatics and tumbling” (“aero”). To fully understand and evaluate what aero has become, discussion of its background and origin will be helpful.

In years past, Quinnipiac sponsored a women’s sideline cheerleading team that performed at men’s basketball games and occasionally entered competitions against other schools. Following the 2008-09 academic year, however, Quinnipiac decided to transform its traditional cheerleading team into a new women’s varsity sport for the exclusive purpose of competition, a sport it aptly named: “competitive cheer.” As I explained in a previous ruling:

Competitive cheer is an outgrowth of traditional sideline cheerleading. Competitive cheer teams use many of the moves and techniques that sideline cheer squads have developed over the decades, and their routines look like more athletic and aerobatic sideline cheer orchestrations. But whereas sideline cheerleaders primarily work to entertain audiences or solicit crowd reaction at other teams’ games or school functions, competitive cheer teams strictly engage in sport. Participants do not perform for a crowd’s approval or involvement — they compete to win.

Biediger, 728 F.Supp.2d at 78. Thus, in contrast to traditional sideline cheerleading, competitive cheer “emphasize[s] the more gymnastic elements of sideline cheer-leading, such as aerial maneuvers, floor tumbling, and balancing exercises, to the exclusion of those activities intended to rally the watching audience.” Id.

To encourage the development of competitive cheer, Quinnipiac helped create a nascent intercollegiate organization, the National Competitive Stunt and Tumbling Association (“NCSTA”), with seven other schools: the University of Maryland, Fairmont State University, the University of Oregon, Azusa Pacific University, Baylor University, Fort Valley State University, and Ohio State University. Five of these schools — Quinnipiac, Maryland, Fairmont State, Oregon, and Azusa Pacific — sponsored varsity competitive cheer squads for the 2009-10 academic year; the other three were planning to sponsor a varsity team in the near future. The NCSTA was formed independent of the NEC or any other athletic conference.

Following a series of organizational meetings, the NCSTA eventually defined the sport’s four positions: flyers, who are thrown in the air and perform various spins and flips; back spots, who provide support and are responsible for directing groups on a team; and main and support bases, who are responsible for supporting and lifting flyers. In addition, the NCSTA developed an initial set of rules for its competitions. A team’s score is a composite of six discrete events: the stunt, tumble, pyramid, basket toss, partner stunt, and team events. The scoring system is based on pre-determined start difficulty values, a system akin to gymnastics. Teams select the routine that their players will perform in each event, and whether the teams meet that score depends on the quality and accuracy of their execution. Final scores are determined by a panel of judges.

Despite its athletic elements and embryonic organizational structure, competitive cheer/acro is not recognized as a sport by the NCAA. Nor does the NCAA recognize competitive cheer/acro as an “emerging sport,” a provisional designation that allows a university to count the activity toward NCAA revenue distribution and minimum sports sponsorship requirements. NCAA Manual §§ 20.02.4-.02.5 (Def.’s Ex. JX). Furthermore, the Department of Education has not recognized competitive cheerleading/acro to be a sport, and schools reporting their athletic participation data under the Equity in Athletics Disclosure Act (“EADA”) are instructed not to report their cheerleading rosters unless they have received a letter from the Department of Education’s Office of Civil Rights determining that their cheer squads are legitimately engaged in sport. See Dep’t of Educ., Office of Post-secondary Educ., The User’s Guide for the Equity in Athletics Act Web-Based Data Collection (2009), at 19, 21, attached as Ex. L to Expert Report of Donna Lopiano (Pis.’ Ex. 201). To date, the agency has never issued a letter counting cheerleading or aero as a varsity sport.

Following a bench trial in June 2010, this court joined that near-uniform consensus, concluding that Quinnipiac’s competitive cheerleading program was not — at least not yet — an intercollegiate varsity sport for purposes of Title IX. Apart from the lack of recognition by the NCAA and other authorities, my determination was based on the structure, administration, team preparation, and competitive schedule of the cheer program. Specifically, I identified three pivotal shortcomings that distinguished cheer from every other Division I varsity team sponsored by the University: (1) the head coach’s inability to engage in off-campus recruiting; (2) the team’s erratic regular season, which was marred by inconsistency in terms of the rules of play and the quality of opponents, including events against club and even high-school teams; and (3) the team’s perfunctory post-season competition, which consisted of an open invitational tournament that did not rank, seed, or exclude teams on the basis of their regular season record, and imposed new rules of competition not followed during the regular season. Biediger, 728 F.Supp.2d at 99-100. As I stated in that decision, “[although I have only identified three areas where the University falls short, those areas are highly important, if not essential, to the experience of participating on an intercollegiate varsity team.” Id. at 100 (emphasis added).

Unfortunately, Quinnipiac mistook my narrow ruling for a three-point blueprint for turning its budding competitive cheer team into a fully-blossomed intercollegiate varsity sport. The University spent the last two years tweaking its cheer — now “aero” — program to remedy each of the specific elements I previously identified as deficient. As a result of recent changes, which I will examine below, Quinnipiac now argues that the team not only has a new name, but new prospects for recognition as an intercollegiate sport as well.

To Quinnipiac’s credit, a number of its efforts over the past two years have been successful. First, the aero team’s head coach, Mary Ann Powers, began off-campus recruiting for the first time in June 2010 and continued to do so throughout the 2010-11 and 2011-12 seasons. Trial Tr. at 315-30. Although the NCAA does not recognize aero as a varsity sport, Coach Powers nevertheless tailored her recruitment efforts to NCAA standards. Those efforts paid off, and the talents of several recruited athletes were added to the ranks of Quinnipiac’s team. Id.

Second, the aero team’s regular season benefited from more consistency in the rules of play and the quality of opponents. Since July 2010, the NCSTA has changed its name to the National Collegiate Acrobatics and Tumbling Association (“NCA-TA” ), and has developed into a more cohesive governing body with its own set of bylaws, rules, and policies. See NCATA Bylaws Code and Conduct (Def.’s Ex. IA); NCATA Rules and Policies (Def.’s Ex. IB); NCATA Code of Points (Def.’s Ex. IC). The NCATA has also partnered with USA Gymnastics, which now sanctions all NCA-TA competitive events. As a result of this improved structure, for the 2010-11 and 2011-12 seasons, all of aero’s meets were governed by a consistent set of rules under the NCATA format. Further, during both seasons, aero competed solely against college-level varsity opponents. See Trial Tr. at 339-42.

Third, the opportunity for a genuine post-season championship improved in the past two years. During the 2010-11 and 2011-12 academic years, Quinnipiac’s aero team participated in a progressive-style championship under the same NCATA rules that governed regular season play. Although the NCATA championship remains an open invitational in which every aero team in the country participates, teams are now seeded according to their regular season records. See id. at 249-51.

But despite these incremental improvements in structure, administration, and scheduling, crucial elements of Quinnipiac’s aero program remain unchanged and continue to distinguish the team from other Division I varsity sports.

First and foremost, the NCAA still has not recognized aero — or any other cheer-derivation — as an intercollegiate varsity sport. And without that recognition, aero lacks what every other varsity men’s team sponsored by Quinnipiac enjoys: the chance to participate in an NCAA-sponsored championship. Id. at 397. Judith Sweet, the plaintiffs’ sports administration expert, testified credibly that the experience NCAA championships provide is considered “the top of the mountain” by student athletes, and championships sponsored “by other organizations don’t have the same financial resources, and the quality of experience is not the same.” Id. at 438; see also Expert Report of Judith Sweet, at 11 (Pis.’ Ex. 202) (“Sweet Report”).

Second, the NCATA’s recent efforts to win NCAA recognition for aero as an emerging sport have proved fruitless. In December 2010, the NCATA submitted its first emerging-sport proposal to the NCAA’s Committee for Women’s Athletics (“CWA”), the organization responsible for determining whether a newly-developed sport receives provisional recognition as an emerging sport. See Trial Tr. at 267-68; NCATA Emerging Sport Submission (Def.’s Ex. IE). But the NCATA’s proposed format ignited a schism of sorts within the competitive cheer community, which has since splintered into two competing factions with two very different visions of the sport. One faction, led by the NCATA and its membership, has rallied behind the aero format, which emphasizes the gymnastic elements of cheer. The other faction, led by a for-profit entity known as USA Cheer, has put forward a rival format called “STUNT,” which places greater emphasis on the performance-based aspects of traditional cheerleading competitions. See Trial Tr. at 259-60, 275-76; 293-95. Tensions mounted, and in a direct challenge to aero’s viability, STUNT submitted its own emerging-sport proposal to the CWA using its preferred format.

Confronted with competing proposals for cheer-based sports, the CWA held both proposals in abeyance and instructed the NCATA and STUNT to resolve their differences and resubmit a joint proposal. See id. at 283, 293-95. Unfortunately, the two sides failed to reach an agreement, and in 2011, both the NCATA and STUNT once again submitted competing emerging-sport proposals. Id. at 295; NCATA Emerging Sport Supplemental Submission (Def.’s Ex. ID).

As a result of that discord, aero’s prospects of qualifying as an NCAA emerging sport in the foreseeable future have dimmed considerably since 2010. The ongoing rivalry between the NCATA and STUNT means that the structure of this nascent sport will remain in flux, as some schools adopt one format while others adopt the competing format. Moreover, under NCAA rules, before a putative sport can be recognized as an emerging sport, there must be at least twenty collegiate-level varsity or competitive club teams in existence. See Criteria for Emerging Sports, attached as Ex. 6 to Sweet Report. But due, in part, to competition from STUNT, there are currently too few teams operating under the NCATA’s format to support aero as an emerging sport. During the 2011-12 academic year, only six universities sponsored aero teams: Azusa Pacific University, Baylor University, Fairmont State University, the University of Maryland, the University of Oregon, and Quinnipiac. See Trial Tr. at 227. One of those schools — Maryland—has decided to cancel its aero program at the end of the season. Id. In 2012-13, the five remaining schools as well as two others— the University of Massachusetts Dartmouth and Plymouth State University-are expected to sponsor aero programs, bringing the total to seven. Id. at 228. Even looking ahead to 2013-14 and beyond, only three additional schools — Alder-son-Broaddus College, Kennesaw State University and Shorter University — have provided letters of commitment, bringing the total to ten. Id. at 228, 287-88. With so few programs in existence, there is uncertainty whether aero will be recognized as an emerging sport any time soon.

Third, although Quinnipiac’s aero team competed exclusively against collegiate varsity opponents over the past two seasons, there was significant variation in the declared division level among those opponents. In the 2011-12 academic year, for example, Quinnipiac competed against five different teams (i.e., every other aero team in existence). Of those teams, three belonged to NCAA Division I (Baylor, Maryland, and Oregon); one belonged to NCAA Division II (Fairmont State); and one belonged to the NAIA (Azusa Pacific). See A & T Competition Schedule — 2011-12 (Def.’s Ex. IG); Trial Tr. at 346-47. Of Quinnipiac’s ten regular-season competitions, only six were against fellow NCAA Division I opponents. Put differently, forty percent of Quinnipiac’s regular-season meets were against teams below their declared division level. By comparison, one-hundred percent of Quinnipiac’s men’s teams competed one-hundred percent of the time against fellow Division I teams; not one men’s varsity team played a single regular-season game against below-division opponents. See Lamar Daniel Rebuttal Report, at 6-7 (Def.’s Ex. HZ).

Lastly, although Coach Powers recruited some athletes off campus, recruitment strategies for a developing sport like aero differ from recruitment strategies for established varsity sports. Because no high school in the country — or indeed the world — currently sponsors an aero program, see Trial Tr. at 278, 367, Coach Powers’ recruiting efforts were limited to seeking out student-athletes with a patchwork of skill sets derived from diverse athletic backgrounds, including cheerleading, gymnastics, acrobatics and other sports. Id. at 315, 323-25, 327-29. None of these athletes, however, had any experience competing under the aero format. Thus, unlike every men’s sport at Quinnipiac, Coach Powers was unable to recruit athletes for aero based on their mastery of the specific sport for which they were being recruited. Rather, the coach could only infer whether a recruited athlete’s training in other sports prepared her to compete effectively in aero.

C. Women’s Rugby

In the 2011-12 academic year, Quinnipiac began sponsoring a new varsity women’s rugby team. Although Quinnipiac’s team is new, the sport of rugby has been played for about 175 years. Rugby combines elements of football, track, and soccer into a high-intensity sport in which players attempt to move the ball forward, but — somewhat counter-intuitively — are only permitted to pass the ball backwards or sideways. See Trial Tr. at 571.

Rebecca Carlson was hired as Quinnipiac’s head coach for rugby in October 2010, and immediately went to work recruiting athletes and preparing the program for its first competitive season, scheduled to commence in less than a year. Id. at 572. Carlson testified that one of the most attractive elements of rugby is the large roster size a single team can support, making the sport much cheaper for a university to sponsor. Id. at 673. Thus, part of her preparations included sending campus-wide emails and hosting a series of informational meetings to spread the word about women’s rugby. Over the course of the year, Carlson met with approximately sixty female students who expressed interest in playing varsity rugby. See id. at 573-76. But after putting these students’ athletic abilities to the test in a series of open tryouts, Carlson eventually whittled down the number of participants by more than half. Id. at 576-577; see also First Date of Competition Squad Lists 2011-12 (Def.’s Ex. HO).

Carlson became NCAA-certified to recruit off campus in February 2011, and conducted some off-campus recruiting in the months that followed. To that end, she traveled to observe top-ranked high school rugby club teams, and contacted high school coaches for information about various athletes in other sports with skills transferable to rugby. Trial Tr. at 580. Those efforts yielded moderate success: Carlson recruited three rugby players for the 2011-12 academic year, two of whom ultimately joined Quinnipiac’s team. Id. at 581-82. Quinnipiac also allocated a total of six scholarships to the team, though less than one-third of those funds were actually awarded to rugby athletes in 2011-12. Id. at 584. The remainder was reserved for future recruits.

Apart from Quinnipiac, only four other colleges in the country sponsor varsity women’s rugby: Bowdoin College, Eastern Illinois University, Norwich University, and West Chester University. Id. at 572. Just one of those institutions — Eastern Illinois — is designated as Division I. As a result, the rugby team spent most of its inaugural season playing club teams, rather than varsity opponents. Generally speaking, club teams operate at a lower level of competition and receive less institutional support than do varsity teams. See Sweet Report at 4. Club teams typically receive little or no funding from a school’s athletic program, and must seek out alternative sources of support from student government or recreation departments to supply coaching, equipment, and training. Id. During the 2011-12 regular season, Quinnipiac’s rugby team competed in a total of ten matches. See Rugby 2011-12 Competition Schedule (Def.’s Ex. JP). Six of those matches were against collegiate club teams. Only four were played against varsity teams. Id.

Women’s rugby is currently recognized by the NCAA as an “emerging sport,” which means that the NCAA does not sponsor any post-season competition, but the sport is otherwise subject to many of the same structural and administrative requirements as full-fledged NCAA-championship sports. See Sweet Report at 10. Moreover, schools sponsoring women’s rugby may count their teams toward membership mínimums and revenue distribution under NCAA regulations. Id.

But women’s rugby’s future within the NCAA is, at best, uncertain. Under NCAA rules, emerging-sport status is merely a provisional designation, and an emerging sport can lose that status if it fails to garner enough support from member institutions. Specifically, an emerging sport risks removal from the list if, after a period of ten years, it fails to add enough varsity teams to make adequate progress toward promotion to NCAA-championship status. Id. at 12; see also NCAA Manual § 20.02.4.2 (Def.’s Ex. JX) (“A sport shall no longer be considered an emerging sport once the sport has been established as a championship sport. Further, an emerging sport is limited to a 10-year time period to become a championship sport unless it can be demonstrated that steady growth has occurred during that time.”). The NCAA’s initial list of emerging sports, released in the early 1990s, originally included nine sports: crew, ice hockey, team handball, water polo, synchronized swimming, archery, badminton, bowling, and squash. Of those sports, more than half have been removed from the list due to lack of growth, including team handball, synchronized swimming, archery, badminton and squash. See Sweet Report at 10.

Rugby was added to the emerging-sports list in 2002, and has therefore reached the sunset of its ten-year provisional period. Yet despite ten years on the list, a meager five schools — including Quinnipiac — currently sponsor rugby as a varsity women’s sport. Quinnipiac, moreover, is the only Division I school that has added varsity women’s rugby since the sport was added to the list. Id. at 13. By way of comparison, women’s squash was stripped of its emerging-sport status when it reached the ten-year mark in 2011, even though forty-eight schools sponsored varsity teams. Id. Similarly, synchronized swimming was removed when, after ten-years, eleven schools sponsored teams. With only five varsity teams in existence, rugby appears to be in serious danger of losing its emerging-sport status in the very near future. Id.

Moreover, no school in the NEC — the regional conference in which every other Quinnipiac team, except aero, competes— sponsors women’s rugby. See Trial Tr. at 625-27. Therefore, Quinnipiac’s team competes in a separate regional league known as the Metropolitan New York Rugby Football Union (“Metro NY”), which operates under the auspices of USA Rugby, the sport’s national governing body. Id. at 587-89. Although Quinnipiac’s women’s rugby team is designated a varsity team, every other team competing in Metro N.Y. is a collegiate club team. Indeed, not one other varsity team participates in Quinnipiac’s competitive region. Id. at 590.

Although the NCAA does not sponsor any post-season contests in women’s rugby, USA Rugby sponsors its own national collegiate championship. Id. at 567, 663-64. To qualify, teams must first win their regional playoffs, such as the Metro N.Y. regional. From there, a team must win the conference championship — here, USA Rugby’s Northeast Conference — to qualify for the national tournament. Id. at 604. Although Quinnipiac qualified for the playoffs this past season, the rugby team did not compete, apparently for two reasons. First, as a result of an ice storm, Metro N.Y. decided to cancel the playoffs for the 2011-12 season, and instead sent the highest ranking team — which was not Quinnipiac — to the conference tournament. Id. at 605. But even in the absence of ice, Quinnipiac’s team had already decided to skip the regional playoffs — and, as a result, to forgo any chance at competing for USA Rugby’s national championship. Due to Quinnipiac’s competition schedule, participating in the Metro N.Y. regional playoff would have precluded the team from competing in matches against two of the four other varsity rugby teams currently in existence: Eastern Illinois and West Chester. Id. at 605. Carlson testified that her team could not give up those crucial varsity games. Id.

Quinnipiac has since altered its schedule for future seasons to avoid similar conflicts, but it remains to be seen whether Quinnipiac’s rugby team will ever compete in the regional playoffs, even in years to come. According to Coach Carlson, the current format of the regional and conference tournaments — a format in which teams play a series of matches over three consecutive days — is simply too unsafe for her players. Id. at 606, 663-65. Carlson testified that, for safety reasons, she will not allow her players to compete in any regional or conference post-season tournaments so long as those tournaments are structured as back-to-back competitions in a single weekend. Id. at 606, 666.

D. Women’s Indoor and Outdoor Track

During the 2010-11 and 2011-12 seasons, Quinnipiac continued to field four running teams: men’s cross-country, women’s cross-country, women’s indoor track, and women’s outdoor track. All four teams are coached by Carolyn Martin, who was promoted to the head-coaching position in 2009. As head coach, Martin is responsible for, inter alia, training her athletes, preparing them for meets, managing the teams’ budgets and operations, and recruiting team members.

Historically, Quinnipiac has emphasized cross-country over its other running sports, and this past year, the University’s women’s cross-country team won its seventh NEC title. See id. at 517. Quinnipiac cross-country meets and practices are conducted on campus, but the University has neither an indoor nor an outdoor track for competition. Instead, indoor and outdoor track athletes must compete off campus at a local high school. The University’s indoor track team practices on a track in the school’s recreation center, but the outdoor track team practices off campus.

The NCAA recognizes cross-country, indoor track, and outdoor track as three different sports for purposes of athletic eligibility. NCAA Manual § 14.2.3.3 (Def.’s Ex. JX). Each sport imposes its own set of rules and each competes for its own separate championship. Furthermore, the sports have distinct competitive seasons; cross-country competes in the fall, indoor track in the winter, and outdoor track in the spring. Coach Martin, however, has traditionally required her female cross-country athletes — even those who suffered injuries during prior seasons — to join the ranks of the indoor and outdoor track teams as well. On that basis, I previously concluded that Quinnipiac could not double or triple count, for purposes of Title IX, injured or red-shirted cross-country athletes who were forced to sign up for indoor and outdoor track but did not — and physically could not — compete in any track events. Biediger, 728 F.Supp.2d at 106-07. Quinnipiac’s compulsory participation policy smacked of roster manipulation, and “raise[d] questions as to whether simultaneous participation on the women’s cross-country, indoor track, and outdoor track teams at Quinnipiac represented three genuine athletic opportunities, or whether cross-country runners’ mandated participation on the indoor and outdoor track teams was simply a form of alternative off-season training for the cross-country runners, one that allowed Quinnipiac to inflate the rosters of its women’s indoor and outdoor track teams.” Biediger, 691 F.3d at 99.

In the 2010-11 academic year, however, Quinnipiac implemented a new policy: “No student is required to participate in one sport in order to participate in a different sport.” Notice to Athletes Re: Requirement (Email from J. MacDonald), at 2 (Def.’s Ex. HK). Thus, in accordance with that policy, Coach Martin no longer mandates that her cross-country athletes participate in track, too. See Trial Tr. at 511, 793.

Although Martin no longer requires that her cross-country runners join track, many of her athletes continue to do so, even when pre-season injuries might preclude those athletes from actually competing in track meets. According to Martin, running sports have the highest rate of injury among all intercollegiate sports. Id. at 532. Therefore, if an athlete is injured in one running sport (such as cross-country), it is not Martin’s practice to cut that athlete from other teams (such as indoor or outdoor track) if the athlete still wishes to participate. Id.

According to Quinnipiac’s roster count, during the 2011-12 seasons, thirty-two female athletes participated in indoor track and twenty-nine participated in outdoor track. See Lamar Daniel Expert Report, at 28-31 (Def.’s Ex. HY). Of those runners, approximately seven indoor track athletes and eight outdoor track athletes did not compete during the regular season due to injury. Moreover, a total of three indoor track players quit the team shortly after the start of the team’s regular competitive season, without participating in a single track event. Id. at 28-29.

Martin testified that, during the indoor and outdoor track seasons, all of the athletes listed on the team rosters practiced, even if they were not scheduled to compete in an upcoming meet. Trial Tr. at 529-30. Injured players were responsible for participating during practice — although, depending on the severity of injury, their practice time often consisted of physical therapy, strength training, conditioning, and other rehabilitative exercises, rather than running. Id. at 530-33. All of the athletes, however, were expected to attend team meetings and competitive events. All track team participants were also entitled to coaching, equipment, and other athletic benefits, such as travel and per diem costs for away meets, as well as scholarship aid.

According to Martin’s recollections, all of the injured track team members regularly practiced with the team, even though they did not compete. See id. at 536-54. Quinnipiac’s athletic department, however, failed to keep any written record of attendance at team practices, despite an NCAA requirement to maintain such records. See id. at 840; 905-07. Therefore, there is no documentary evidence whatsoever to corroborate Martin’s testimony concerning her memory of individual participation rates.

Martin also testified that injured runners regularly attended track competitions. That testimony was corroborated— at least to some degree — by Martin’s score sheets for each track event, which indicated whether individual runners were injured or red-shirted during the meet. See Martin Spreadsheets (Def.’s Ex. JL).

E. Quinnipiac’s Counting of Athletic Participants

The University currently sponsors seven men’s varsity athletic teams and fourteen women’s varsity athletic teams, including, inter alia, women’s volleyball, women’s cross-country, women’s indoor track, women’s outdoor track, women’s golf, women’s rugby, and women’s aero. Dr. Mark Thompson, Quinnipiac’s Senior Vice President for Academic and Student Affairs, is responsible for the operation of the athletics department and supervises the University’s roster management program. Since 2009, Thompson has maintained oversight for setting roster targets for Quinnipiac’s varsity teams and ensured that coaches adhere to those targets. Coaches seeking to add or remove athletes from their teams for any reason must first seek approval from Thompson.

Lamar Daniel, the defendant’s Title IX expert, submitted a report in which he analyzed the total number of “participants” in Quinnipiac’s athletic program in 2011-12. Purporting to rely on agency interpretations and practices under Title IX, Daniel defined “participants” as:

(1) those individuals whose names appear on the NCAA official eligibility lists at the time of the first competition;

(2) those individuals whose names are added to the NCAA official eligibility lists after the first competition during the season;

(3) those individuals who practice and/or compete during the regular season;

(4) those individuals who receive athletic financial assistance who are red-shirted for medical or other reasons but have eligibility remaining;

(5) those individuals who left the team for disciplinary or other reasons but continue to receive athletic financial assistance and are eligible to compete under NCAA rules; [and]

(6) those individuals who enroll and/or practice during the nontraditional seasons only if they receive athletic financial assistance.

Lamar Daniel Expert Report, at 4 (Def.’s Ex. HY). Conversely, Daniel explained that “participants” are not:

(1) those who are fifth-year students whose eligibility has expired but still receive athletic financial assistance;

(2) those who are medically exempt, i.e., who receive athletic financial assistance but cannot participate because of career-ending injuries;

(3) those who enroll and/or practice during the nontraditional season unless they receive athletic financial assistance for the period; [and]

(4) those who try out and quit or are cut prior to the first contest of the regular season.

Id. Applying this definition, Daniel examined Quinnipiac’s squad lists for 2011-12 and verified the participant count through interviews with the head coaches of each varsity team sponsored by the University. Id. Daniel’s results are summarized in the following table.

SPORT MALE PARTICIPANTS FEMALE PARTICIPANTS

Aero NA 36

Baseball 31 NA

Basketball 16 15

Field Hockey NA 22

Golf NA 11

Ice Hockey 28 27

Lacrosse 44 30

Rugby NA 28

Softball NA 16

Soccer 25 26

Tennis 11 11

Cross-country 13 24

Indoor Track NA 32

Outdoor Track NA 29

Volleyball NA 14

TOTALS 168 321

Id. at 2.

According to Quinnipiac, in the 2011-12 academic year, the University had an undergraduate enrollment of 5,988 students, of which 2,253 (or 37.6%) were male, and 3,735 (or 62.4%) were female. Comparing those enrollment statistics with the calculations summarized above reveals that Quinnipiac’s total number of athletic participants included 168 male athletes (or 34.4%) and 321 female athletes (or 65.6%). The University’s counting, if accurate, demonstrates that Quinnipiac’s athletic participation rates for 2011-12 were not only proportional to the University’s female undergraduate enrollment, but were in fact over-weighted in favor of women by approximately three percentage points. Id. at 4-5.

Daniel also analyzed the competitive schedules within Quinnipiac’s varsity athletics program for 2011-12. The charts below provide the total number of competitive events and the division level of opponents for men’s and women’s teams.

Men’s Teams

NCAA NCAA NCAA MEN’S DIVISION DIVISION DIVISION TEAMS I_II_¡II_ NAIA TOTAL CLUB EVENTS

Baseball 52 0 0 52

Basketball 29 29

Cross-country 0

Ice Hockey 34 34

Lacrosse 17 17

Soccer 17 17

Tennis 22 22

TOTALS 178 178

Women’s Teams

WOMEN’S TEAMS NCAA DIVISION I NCAA DIVISION II NCAA DIVISION III NAIA CLUB TOTAL EVENTS

Aero 0 10

Basketball 29 29

Cross-country 7

Field Hockey 18 18

Golf 10 10

Ice Hockey 33

Lacrosse 15 15

Rugby 10

Soccer 17 17

Softball 53

Tennis 24 24

Indoor Track

Outdoor Track 7

Volleyball 25 25

TOTALS 254 265

See Lamar Daniel Rebuttal Report, at 6-7 (Def.’s Ex. HZ). As can be seen above, Quinnipiac’s men’s teams played all of their regular season contests against Division I opponents. Only women’s teams — ■ specifically, aero and rugby — played against teams ranked below Quinnipiac’s declared division level. Nonetheless, on the basis of these statistics, Daniel opined that the University is now in compliance with Title IX.

The plaintiffs’ competing Title IX expert, Dr. Donna Lopiano, submitted a report of her own in which she challenged Daniel’s calculations. See Expert Report of Donna Lopiano (Pis.’ Ex. 201). Lopiano argues that Daniel’s methodology for counting “participants” under Title IX conflicts with agency regulations. Specifically, Lopiano contends, inter alia, that: (1) aero athletes should not be counted as participants because the aero program still does not qualify as an intercollegiate-level varsity sport under the statute; (2) rugby athletes similarly should not be counted because the rugby team, though clearly engaged in “sport,” is currently operating at a club, rather than varsity, level of competition; and (3) two- and three-sport runners — i.e., athletes who participated in cross-country, as well as indoor track and/or outdoor track — who did not actually compete in multiple sports should not be double- or triple-counted. Moreover, Lo-piano argues that Daniel failed to appropriately assess the levels of competition that Quinnipiac offers its male and female athletes program-wide. In Lopiano’s view, if the proper methodology is applied, Quinnipiac’s 2011-12 athletic program still fails to meet Title IX’s gender-equity requirements.

III. Standard of Review

A. Standard for Modifying or Dissolving Injunctions

I begin with a brief overview of the law of injunctive remedies, and the standards governing their modification. Generally speaking, “[a]n injunction is an equitable remedy issued under established principles which guide courts of equity.” Sierra Club v. U.S. Army Corps of Eng’rs, 732 F.2d 253, 256 (2d Cir.1984). Injunctions come in two basic varieties: preliminary and permanent. A preliminary injunction (including a temporary restraining order), as the name suggests, is issued to preserve the status quo while the parties await a final determination on the merits. Id. A permanent injunction, in contrast, is issued only after a merits hearing, and generally “may not be changed in the interest of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved.” Id. (citing United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968)).

Injunctive decrees are creatures of equity, and equity governs their dissolution. See United States v. Eastman Kodak Co., 63 F.3d 95, 101 (2d Cir.1995) (“[T]he power of a court to modify or terminate a consent decree is, at bottom, guided by equitable considerations.”). For preliminary injunctions, the decision whether to modify or dissolve the order “involves an exercise of the same discretion that a court employs in an initial decision to grant or deny a preliminary injunction,” Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137, 141 (2d Cir. 2005), and that “discretion is measured by whether the requested modification effectuates or thwarts the purpose behind the injunction.” Sierra Club, 732 F.2d at 257 (citing Chrysler Corp. v. United States, 316 U.S. 556, 562, 62 S.Ct. 1146, 86 L.Ed. 1668 (1942)). For permanent injunctions, however, Federal Rule of Civil Procedure 60(b)(5) provides that the final order may be vacated or modified on “just terms” when “applying [the order] prospectively is no longer equitable.” Fed.R.Civ.P. 60(b)(5). The Rule supplies “a means by which a party can ask a court to modify or vacate a judgment or order if ‘a significant change either in factual conditions or in law’ renders continued enforcement ‘detrimental to the public interest.’ ” Horne v. Flores, 557 U.S. 433, 447, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)); see also In re Joint E. & S. Dists. Asbestos Litig., 237 F.Supp.2d 297, 316 (E.D.N.Y.2002) (Rule 60(b)(5) is “based on the historic equitable power of the court to modify its decree in light of changed circumstances”). The burden to prove such “significant change” rests with the party requesting relief. See Rufo, 502 U.S. at 383, 112 S.Ct. 748 (“[A] party seeking modification ... bears the burden of establishing that a significant change in circumstances warrants revision of the decree.”). In addition, the moving party generally must show that there has been good-faith compliance with the order and that it is “unlikely that the [enjoined party] would return to its former ways” if the order is dissolved. Bd. of Educ. of Oklahoma City Pub. Schs. v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). However, once “a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper.” Horne, 557 U.S. at 450, 129 S.Ct. 2579.

The injunction at issue in this case is a permanent injunction, though not necessarily one intended to remain effective in perpetuity. Thus, in order to obtain relief from the injunction order, Quinnipiac must demonstrate the inequity of the order’s continued enforcement in light of significantly-changed circumstances. See Fed.R.Civ.P. 60(b)(5); Horne, 557 U.S. at 447, 129 S.Ct. 2579; see also Sierra Club, 732 F.2d at 256 (“[A] court may modify a final or permanent injunction only where conditions have so changed as to make such relief equitable, i.e., a significant change in the law or facts.”).

Here, “significant change” — change sufficient to implement a “durable remedy” and justify dissolution of the injunction' — ■ means achieving genuine compliance with Title IX, both now and for the foreseeable future. See Horne, 557 U.S. at 447, 450, 129 S.Ct. 2579; Dowell, 498 U.S. at 247, 111 S.Ct. 630; see also Evans v. Fenty, 701 F.Supp.2d 126, 171 (D.D.C.2010) (“[A]t a minimum, a ‘durable’ remedy means a remedy that gives the Court confidence that defendants will not resume their violations of plaintiffs’ constitutional rights once judicial oversight ends.”). Thus, before analyzing Quinnipiac’s current athletic program, I pause to review the statutory and regulatory framework governing Title IX athletics cases. Much of the relevant law was fully discussed in my previous decision, see Biediger, 728 F.Supp.2d at 87-94, which the Second Circuit has since affirmed, see Biediger, 691 F.3d at 96-108. I apply that same analysis here. But Quinnipiac’s motion also raises several novel questions under Title IX — questions for which prior decisions supply few, if any, answers. In those instances, I turn to agency regulations, and the canon of administrative law, for appropriate guidance.

B. Title IX: Statutory and Regulatory Background

1. The Statute

Title IX provides, in relevant part: “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). The statutory language is bold and aspirational, but Title IX’s particulars have mostly been defined by subsequent agency regulations and interpretations. See Cohen v. Brown Univ., 991 F.2d 888, 893 (1st Cir.1993) (stating that Title IX “sketches wide policy lines, leaving the details to regulating agencies”). Thus, it is to those regulations that I now turn.

2. The Regulations

The Department of Education (“DOE”), the agency tasked with enforcing Title IX, has established a bipartite regulatory framework for intercollegiate athletics, which requires funding recipients to provide members of both sexes (1) equal athletic financial assistance (scholarships), see 34 C.F.R. § 106.37(c); and (2) equal athletic opportunity, see 34 C.F.R. § 106.41(c).

The equal-athletic-opportunity requirement under section 106.41(c) is farther subdivided into two component parts: “effective accommodation” and “equal treatment.” Biediger, 691 F.3d at 92. The effective-accommodation component bases Title IX compliance, in part, on whether “the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). In contrast, the equal-treatment component, derived from 34 C.F.R. § 106.41(c)(2)-(10), requires “equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided male and female athletes.” Mansourian v. Regents of Univ. of California, 602 F.3d 957, 964-65 (9th Cir.2010) (internal quotation omitted). “Effective accommodation claims thus concern the opportunity to participate in athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors affecting participants in athletics.” Id. at 965; see also Boucher v. Syracuse Univ., 164 F.3d 113, 115 n. 1-2 (2d Cir.1999) (distinguishing effective-accommodation claims from equal-treatment claims). Notably, “ ‘an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes’ ” even if athletic benefits are provided on an equal basis, and vice versa. Mansourian, 602 F.3d at 965 (quoting Kelley v. Bd. of Trs., 35 F.3d 265, 268 (7th Cir.1994)).

Thus, as applied to intercollegiate athletics, the DOE’s Title IX regulations provide for a triumvirate of compliance-related claims: (1) “scholarship” claims; (2) “effective-accommodation” claims; and (3) “equal-treatment” claims. With respect to the instant motion, however, we are concerned only with effective accommodation under section 106.41(c)(1). The plaintiffs’ equal-treatment and scholarship claims will be tried separately at a later date.

The regulations set forth above were promulgated according to specific congressional delegation, see Cohen, 991 F.2d at 895 (citing Education Amendments of 1974, Pub.L. No. 93-380, § 844, 88 Stat. 612 (1974)), and therefore the “ ‘degree of deference is particularly high.’ ” McCormick, 370 F.3d at 288 (quoting Cohen, 991 F.2d at 895). Moreover, the requirement of section 106.41(c)(1), that courts consider whether the “selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes” when assessing gender equity in athletics, is a reasonable interpretation of Title IX, to which I must defer. See Biediger, 691 F.3d at 96-97.

S. The Policy Interpretation

In 1979, the DOE published a policy interpretation, which the department’s Office of Civil Rights (“OCR”) continues to enforce. See Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 (Dec. 11, 1979) (the “1979 Policy Interpretation”). Reflecting the agency’s tripartite approach to Title IX compliance issues, the policy interpretation is divided into three separate sections: (1) Athletic Financial Assistance (Scholarships); (2) Equivalence in Other Athletic Benefits and Opportunities; and (3) Effective Accommodation of Student Interests and Abilities. 44 Fed.Reg. at 71,414-71,-418.

With respect to the effective-accommodation requirement under section 106.41(c)(1), the policy interpretation provides, in relevant part: “[i]n effectively accommodating the interests and abilities of male and female athletes, institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities.” 44 Fed.Reg. at 71,418 (emphasis added). Thus, the OCR measures effective accommodation by reference to two separate gender-equity benchmarks: (1) equity in athletic opportunities; and (2) equity in levels of competition. Id. Whether a university meets these dual obligations is determined under two distinct tests, which have come to be known as (1) the “three-part” test; and (2) the “levels-of-competition” test. Id. Funding recipients must satisfy both tests to comply with Title IX’s mandates. See McCormick, 370 F.3d at 301 (“[T]he three-part test relates to participation opportunities, and a second, two-part test relates to the competitive schedules and opportunities for men’s and women’s teams.”); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 829 (10th Cir.1993) (“In addition to assessing whether individuals of both sexes have the opportunity to compete in intercollegiate athletics, the OCR also examines whether the quality of competition provided to male and female athletes equally reflects their abilities.”), cert. denied, 510 U.S. 1004, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993); Cohen v. Brown Univ., 809 F.Supp. 978, 991 (D.R.I.1992) (“Thus, in determining compliance under § 106.41(c)(1), a court must conduct a two step analysis. First, it should apply the three-part test, and second, it should apply the two questions on competitive opportunities. A violation of § 106.41(c)(1) can occur in either one of these two steps, or in both.”), aff'd, 991 F.2d 888 (1st Cir.1993).

The first test — the “three-part test”— was the subject of my prior decision, see Biediger, 728 F.Supp.2d at 87-88, and “most Title IX litigation has centered around application of this test.” McCormick, 370 F.3d at 300. Because I previously concluded that Quinnipiac failed this first test, there was never any need to address the second test. See Biediger, 728 F.Supp.2d at 111-14. Here, however, the plaintiffs contend that, even if Quinnipiac can demonstrate compliance under the “three-part” test, the University’s current athletic program, assessed as a whole, independently fails under the “levels-of-competition” test. Therefore, the resolution of this motion requires that I interpret and apply both tests.

a. The Three-Part Test

The three-part test assesses whether a university has met its obligation to “effectively accommodate the interests and abilities of members of both sexes” in one of three ways:

(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 interest[s] 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.

1979 Policy Interpretation, 44 Fed.Reg. at 71,418. These three “prongs” establish three separate safe harbors; a school complies with this facet of the effective-accommodation requirement if it succeeds in meeting any one of them. Biediger, 691 F.3d at 93; Cohen, 991 F.2d at 897. In this case, Quinnipiac relies solely on the first prong, contending that, because it provides athletic participation opportunities for women in numbers substantially proportionate to its undergraduate female enrollment, the interests and abilities of its female athletes are effectively accommodated. The University does not argue, and has never argued, that it meets this aspect of Title IX’s mandate by satisfying the second or third prongs of the three-part test.

From a defendant’s perspective, relying exclusively on prong one — and forgoing proof under prongs two and three— has certain advantages. Compliance under prongs two and three typically requires an extensive evidentiary record concerning a school’s past gender-equity practices, h