Full opinion text
OPINION AND ORDER PETTINE, Senior District Judge. I. INTRODUCTION This is a class action lawsuit charging Brown University, its president, and its athletic director (collectively “Brown”) with violating Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (1988) (“Title IX”). Specifically, the plaintiff class, which consists of all present and future Brown University women students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown, contends that defendants have discriminated against women in the operation of Brown’s intercollegiate athletic program. After carefully considering the legal arguments and evidence presented throughout the thirty day trial on the merits, I find Brown University to be in violation of Title IX. This suit was initiated in response to the demotion of the women’s gymnastics and volleyball teams at Brown from full varsity to club varsity status in May of 1991. Up until that time, both teams were fully funded by the University. At the same time that Brown demoted these two women’s teams, and apparently in an effort to comply with its understanding of Title IX’s directives, Brown also demoted two men’s fully funded varsity teams, water polo and golf, to club varsity status. At that time, all four teams were stripped of their university funding and most of their varsity privileges. Plaintiffs allege that, against a background in which men at Brown already enjoyed a disproportionately large share of the resources expended on athletics and of the intercollegiate participation opportunities afforded to student athletes, the facially even-handed demotions perpetuated Brown’s discriminatory treatment of women. Prior to the trial on the merits, this Court granted plaintiffs’ motion for class certification and denied defendants’ motion to dismiss. This Court subsequently heard fourteen days of testimony on plaintiffs’ motion for a preliminary injunction. I ordered that the women’s gymnastics and volleyball teams be reinstated to fully funded varsity status and prohibited Brown from eliminating or reducing the status or funding of any existing women’s intercollegiate varsity team until the case was resolved on the merits. Cohen v. Brown Univ., 809 F.Supp. 978 (D.R.I.1992). “After mapping Title IX’s ragged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties’ arguments,” the First Circuit affirmed. Cohen v. Brown Univ., 991 F.2d 888, 891 (1st Cir.1993). At the time of the preliminary injunction, there was virtually no case law on point. Since issuance of the First Circuit’s opinion, a number of other circuits have been faced with Title IX athletic discrimination suits. See, e.g., Homer v. Kentucky High Sch. Athletic Ass’n., 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 938, 130 L.Ed.2d 883 (1995); Favia v. Indiana Univ. of Pennsylvania, 7 F.3d 332 (3d Cir.1993); Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824 (10th Cir.), cert. denied, — U.S. -, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993). The Third, Sixth, Seventh, and Tenth Circuits are in agreement with the First Circuit’s interpretation of the law and relevant agency documents. These developments have been explored in a number of recent law review articles. In the instant case, defendants have advanced several provocative arguments that require a thorough examination of the relevant law. In addition, the unusual two-tiered structure of Brown’s intercollegiate athletic program presents a unique factual situation requiring this Court to engage in an exhaustive analysis of Title IX and its regulatory complements. First, I will chronicle the factual background of this case. Second, I will address several preliminary matters. Third, I will outline the legal framework of Title IX and the implementing regulations and interpretation. Fourth, I will review the degree of deference due these agency documents. Fifth, I will set forth this Court’s interpretation of the law and will explain why the alternative interpretations offered by counsel must be rejected. Finally, I will discuss the specifics of this case in light of my legal conclusions. II. FACTUAL BACKGROUND Brown University is a Division I institution within the National Collegiate Athletic Association (“NCAA”). As such, Brown participates at the highest level of NCAA competition. Brown currently offers an extensive athletic program for its students. At the intercollegiate level it funds 13 sports for women and 12 sports for men. Additionally, it recognizes, but does not fund, several sports as “donor-funded” varsities (four men’s teams and three women’s teams). Although the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes. Brown provides the financial resources to sustain the budgets of the “university-funded” varsities, whereas, it requires donor-funded teams to raise their own funds through private donations in order to exist. Brown also provides certain services and privileges to the university-funded varsities but not to the donor-funded varsities. A consequence of this two-tiered system is that most donor-funded varsities have found it difficult to maintain a level of competitiveness as high as their ability would otherwise permit. Their competitive disadvantage in comparison to university-funded teams is due, in part, to the reluctance of some schools to include donor-funded teams in their varsity schedules and in part to the inability of the teams to obtain varsity-level coaching and recruits,, or to obtain funds for travel, post-season competition and equipment. Extensive testimony demonstrated that several donor-funded teams do have the interest and ability to compete at the top varsity level and would benefit from university-funded status. I find that the donor-funded women’s gymnastics, women’s fencing, and women’s ski teams have demonstrated this interest and ability. The women’s gymnastics team was a thriving university-funded varsity team prior to the 1991 demotion; in fact, the team won the Ivy League championship in 1989-90. See, e.g., testimony of Athletic Director Roach, Prelim.Inj. Hr’g Tr. 11/4/92 at 86 (acknowledging that at the time gymnastics was demoted, the team had the interest and ability to compete at the varsity level). The women’s fencing team has been successful for many years against a number of club and varsity competitors, and, prior to the demotions, John Parry, who was the athletic director at that time, supported the team’s request to be upgraded to varsity status. Prelim.Inj. Hr’g Tr. 10/27/92 at 122-26. Despite a meager budget, the women’s ski team has consistently fielded a competitive team in the U.S. Collegiate Ski Association Osborne Division. See Trial Tr. 9/28/94 at 12-14 (head coach of Smith College women’s varsity ski team testifying to strength and stability of the Brown University women’s ski team). Additionally, women’s water polo, a club team, has demonstrated the interest and ability to compete at the highest varsity level. The women’s water polo team, according to the coach of men’s and women’s water polo, is able to compete at a varsity level. See Trial Tr. 10/3/94 at 65 (testifying to varsity ability and schedule of the women’s water polo team). See also Trial Tr. 10/5/94 at 18-20 (head coach of Slippery Rock University men’s and women’s varsity water polo teams testifying to stability and achievements of Brown University women’s water polo team). I also find that although all four teams would benefit from university-funded varsity status, only two of these teams, volleyball and siding, would be able to sustain a competitive intercollegiate varsity schedule if supported at donor-funded status. The testimony demonstrated that gymnastics would effectively cease to exist as an intercollegiate varsity team if it were denied university funding. The gymnastics team does not attract enough private donations to afford quality coaching. See swpra note 9. In addition, a donor-funded gymnastics team will draw less talented individuals to the team, which will, as a result, suffer competitively. The testimony also established that elevation of women’s water polo, currently a club team, to donor-funded status would actually be financially disadvantageous for the team. As a club sport, the team currently receives $3000 from the Student Activities, organization; as a donor-funded sport, the team would be required to raise all of its own funds. Trial Tr. 10/3/94 at 26. In Cohen, I summarized the history of athletics at Brown University: Nearly all of the men’s varsity teams were established before 1927. Baseball was created first in 1869, followed by football in 1878 and track in 1879. The only men’s teams established after 1927 were crew in 1961, water polo in 1974 [elevated to varsity in 1981], and squash in 1989 [provided with varsity services but fully endowed through private donations]. By comparison, virtually all of the women’s varsity teams were created between 1971 and 1977. The only women’s varsity team created after this period was winter track in 1982. Before 1971, all women’s sports were operated out of a separate athletic program at Pembroke College, a sub-unit of Brown University until its merger with Brown College during that year. Before the merger, the women’s athletic program at Pembroke bore no resemblance to.the program which Brown provided to its male varsity athletes. While Pembroke did have few intercollegiate teams (e.g., field hockey, basketball, tennis), the women’s program received very little financial or institutional support from the university. Cohen, 809 F.Supp. at 981. At the present time, Brown’s intercollegiate athletic program consists of 32 teams. The list of varsity teams and their respective participants for the last complete season (1993/94), with program offering updates, are as follows: WOMEN University-funded Basketball: 12 Crew: 50 Cross-Country: 18 Field Hockey: 36 Ice Hockey: 22 Lacrosse: 34 Soccer: 22 Softball: 15 Squash: 15 Swimming: 27 Tennis: 10 Track: 39 Volleyball: 09 Donor-funded Fencing: 10 Gymnastics: 10 Skiing: 09 Miscellaneous Men’s Golf: 01 Men’s Crew: 03 Total women varsity: 342 MEN University-funded Baseball: 30 Basketball: 17 Crew: 45 Cross-Country: 20 Football: 126 Ice Hockey: 41 Lacrosse: 44 Soccer: 32 Swimming: 24 Tennis: 12 Track: 56 Wrestling: 32 Donor-funded: Fencing: 26 Golf: 14 Squash: 15 Water polo: 21 Total men varsity: 555 I find that 342 women (38.13% of athletes) and 555 men (61.87% of athletes) were members of varsity teams for the majority of the last complete season and therefore count as “participants” in intercollegiate athletics for the purpose of Title IX analysis. Defendants argue that there is no consistent measure of actual participation rates because team size varies throughout the athletic season. Defendants observe that injuries, “cuts,” and “quits” result in different team numbers depending on when in the season team rosters are tallied. Counting the number of participants at the end of the last complete season, rather than at some arbitrary point in the season, addresses this concern. A team member who participated for the majority of the season should be acknowledged as a participant. Once the season is over, it is possible to assess which of the individuals listed on the roster at the beginning of the season remained team members. Defendants further argue that there is no consistent measure of actual participation rates because there are alternative definitions of “participant” that yield very different participation totals. For instance, a “participant” could be defined to include every member of the team, even habitual “bench-warmers,” or to include only “core” players. Including as “participants” all of the students who were members of the team for a majority of the season addresses this concern. Where both the athlete and coach determine that there is a place on the team for a student, it is not for this Court to second-guess their judgment and impose its own, or anyone else’s, definition of a valuable or genuine varsity experience. It is the nature of a team that each student makes a different contribution to the team’s success and takes from it a unique experience. Every varsity team member is therefore a varsity “participant.” Thus, in 1993/94, • there were 897 student athletes participating in varsity athletics. Of this total, 555 (61.87%) were men and 342 (38.13%) were women. During that same year, the undergraduate enrollment was 5722 students; this included 2796 men (48.86%) and 2926 women (51.14%). Pis.’ Ex. 33. III. PRELIMINARY MATTERS A. Partial Settlement of the Case On December 16, 1994, during the course of the trial on the merits, this Court entered a Settlement Agreement and Stipulation of Dismissal in Regard to Equality of Treatment (“Settlement Agreement”). The agreement settled plaintiffs’ allegations that significant disparities exist in the relative financial support of and benefits given to men’s and women’s university-funded varsity teams. The treatment issues settled by this agreement concern only university-funded varsity teams as to which there is no dispute regarding status and does not preclude consideration by the Court of any evidence relevant to issues in contention. Thus, the instant Opinion and Order focuses primarily on plaintiffs’ alternative claim that significant disparities exist in the number of intercollegiate participation opportunities available to men and those available to women. Therefore, in assessing Brown’s compliance with Title IX, I will address whether the University accommodates effectively “the interests and abilities of students to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes.” Policy Interpretation, 44 Fed.Reg. 71,413, at 71,417 (1979). In addition, this Opinion and Order deals briefly with the treatment of teams as to which there is a dispute concerning status. B. The Precedential Effect of the First Circuit’s Preliminary Injunction Ruling Brown has advanced the argument that any findings of fact and conclusions of law made by the First Circuit during the preliminary injunction phase of this case are not binding on this Court’s ruling on the merits. They note that “[a] preliminary injunction is ‘by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness.’ ” Defs.’ Mem. of Law Re Law of the Case at 2 (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir.1953)). Further, they reason that a court confronted with different facts, arguments, and issues may reach different conclusions about legal standards or statutory and regulatory interpretations. Defs.’ Reply Mem. Re Law of the Case at 3. During the trial on the merits, defendants urged this Court to find that it had the authority to disregard the interpretation of Title IX adopted by the First Circuit in upholding the preliminary injunction issued by this Court. Defendants are correct that the factual determinations set forth in Cohen, 809 F.Supp. 978, and upheld by the First Circuit on appeal are not binding on the decision currently before me. Similarly, this Court is not bound by the First Circuit’s application of the law to the facts then in evidence. It is well-settled that at the preliminary injunction stage, an appellate court’s “‘findings’ and ‘holdings’ as to the merits of the case are not final but should be understood to be merely statements of probable outcomes based on the record as it existed before the district court.” LeBeau v. Spirito, 703 F.2d 639, 643 (1st Cir.1983) (citing Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)). Defendants incorrectly extend this general principle to support their position that this Court is not bound to follow the First Circuit’s legal pronouncements. A district court is not free to determine anew issues of law already presented to and decided by the appellate court. ■ Statements of law made by an appellate court, whether set forth in an opinion reviewing a preliminary injunction or in an opinion reviewing the outcome of a trial on the merits, become the law of the circuit and, as established precedent, bind the district courts In any case, the question is academic because this Court is in accord with the First Circuit’s interpretation of Title IX as set forth in Cohen, 991 F.2d 888. Nothing in the record before me, now fully developed, undermines the considered legal framework established by the First Circuit at the preliminary injunction stage. However, the existence of new facts and legal arguments presented at trial does require a full examination of and expansion upon the foundations laid by the First Circuit. Naturally, as defendants contend, to the extent that the appellate court has not been presented with and has not decided any legal issue now material to the case, this Court must interpret the law without the benefit of guidance from the appellate court. IV. LEGAL FRAMEWORK A. Title IX The text of Title IX does not explicitly prohibit gender discrimination in athletics. Rather, Title IX is a general prohibition of sex discrimination in all aspects of educational institutions receiving federal funding: 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 [with exemptions not applicable to this case]. 20 U.S.C. § 1681(a). In order for this prohibition to apply to an institution’s athletic programs, the athletic department need not be the direct recipient of federal funding; rather it is well-settled that Title IX applies to all of an institution’s programs if any part of an educational institution receives federal funds. Cohen, 809 F.Supp. at 982-83 (citations omitted). In addition, Title IX specifies that its proscription of gender discrimination in athletics should not be “interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of [a gender] imbalance” between the persons participating in the program and the total number of persons in the relevant community. 20 U.S.C. § 1681(b). However, subsection (b) also provides that it “shall not be construed to prevent the consideration in any ... proceeding ... of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.” 20 U.S.C. § 1681(b). Thus, Title IX “does not mandate strict numerical equality between the gender balance of a college’s athletic program and the gender balance of its student body.” Cohen, 991 F.2d at 894. The practical effect of subsection (b) is that: [A] court assessing Title IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution’s student constituency, on the one hand, and its athletic programs, on the other hand. That is not to say, however, that evidence of such disparity is irrelevant. Quite the contrary: under the proviso contained in section 1681(b), a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination, such as unmet need amongst the members of the disadvantaged gender. Cohen, 991 F.2d at 895. Thus, evidence of gender imbalance in Brown’s athletic programs is relevant to a determination of noncompliance but not sufficient by itself to mandate a finding of Title IX violation. B. Regulations The U.S. Department of Education (“DED”) acting through its Office of Civil Rights (“OCR”) is responsible for administering Title IX. Pursuant to the statutory mandate, DED promulgated regulations controlling “Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving or Benefitting from Federal Financial Assistance.” 34 C.F.R. § 106 (1994). The regulations specifically address athletic program administration at 34 C.F.R. §§ 106.37(c) and 106.41. Paralleling the language of Title IX, section 106.41(a) states: No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interseholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. 34 C.F.R. § 106.41(a). The regulations go on to clarify, however, that institutions are permitted to “operate or sponsor separate teams for members of each sex” under certain circumstances detailed therein. 34 C.F.R. § 106.41(b). Section 106.41(c), entitled “Equal Opportunity,” addresses the most critical issue in this case. Regardless of what teams, if any, an institution offers, its athletic program must afford equal opportunities to male and female athletes. The section reads, in pertinent part: In determining whether equal opportunities are available the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. 34 C.F.R. § 106.41(c). The trial on the merits focused on the first of these ten factors, the “effective accommodation” element. The other nine factors concern “treatment issues,” which were settled by the parties only as to equivalence between men’s and women’s teams voluntarily maintained by Brown at the university-funded level. See discussion supra part III.A. C. Policy Interpretation Several years after the regulations were promulgated, DED’s Office of Civil Rights proposed a policy interpretation designed to resolve confusion concerning Title IX compliance. After considering public comments, it published the final Policy Interpretation in the Federal Register. 44 Fed.Reg. 71,413 (1979). The Policy Interpretation: clarifies the obligations which recipients of Federal aid have under Title IX to provide equal opportunities in athletic programs. In particular, this Policy Interpretation provides a means to assess an institution’s compliance with the equal opportunity requirements of ¡the regulation which are set forth at [34 C.F.R. §§ 106.37(c) and 106.41(c) ]. 44 Fed.Reg. at 71,415. The Policy Interpretation is divided into three categories: “Athletic Financial Assistance (Scholarships),” 44 Fed.Reg. at 71,415; “Equivalence in Other Athletic Benefits and Opportunities,” 44 Fed. Reg. at 71,415; and “Effective Accommodation of Student Interests and Abilities.” 44 Fed.Reg. at 71,417. Litigation focused on the “Effective Accommodation” section. The “Effective Accommodation” section of the Policy Interpretation interprets the first of the ten factors found in the regulations at 34 C.F.R. § 106.41(c)(1) (stating that the Director should consider “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes”). The Policy Interpretation measures compliance in the area of effective accommodation first by applying a three prong test and second by applying a two part test. The three prong test assesses compliance by determining: (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 and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. 44 Fed.Reg. at 71,418. The two part test assesses compliance by examining: (1) Whether the competitive schedules for men’s and women’s teams, on a program-wide basis, afford proportionally similar numbers of male and female athletes equivalently advanced competitive opportunities; or (2) Whether the institution can demonstrate a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex. 44 Fed.Reg. at 71,418. The “Effective Accommodation” section of the Policy Interpretation, which includes both the three prong test and the two part test, also provides that a school need not establish an intercollegiate team where there is no reasonable expectation of competition in that sport within the institution’s normal geographic area of competition. 44 Fed.Reg. at 71,418. Finally, the Policy Interpretation’s “Effective Accommodation” section provides that the following factors should be considered in an overall determination of compliance pursuant to 34 C.F.R. § 106.41(c): (a) Whether the policies of an institution are discriminatory in language or effect; or (b) Whether disparities of a substantial and unjustified nature in the benefits, treatment, services, or opportunities afforded male and female athletes exist in the institution’s program as a whole; or (c) Whether disparities in individual segments of the program with respect to benefits, treatment, services, or opportunities are substantial enough in and of themselves to deny equality of athletic opportunity. 44 Fed.Reg. 71,418. D. Title IX Athletics Investigator’s Manual The 1990 Title IX Athletics Investigator’s Manual, published by OCR, was designed to assist OCR investigators in determining whether an institution is in compliance with Title IX. The Manual serves as a practical guide in the agency’s enforcement of the Policy Interpretation. Valerie M. Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator’s Manual (1990). V. DEFERENCE TO AGENCY REGULATIONS AND INTERPRETATION OF TITLE IX In Cohen, the First Circuit held that the regulations promulgated pursuant to Title IX deserve controlling weight. 991 F.2d at 895. This degree of deference is appropriate because Congress “explicitly delegated to the agency the task of prescribing standards for athletic programs under Title IX.” Cohen, 991 F.2d at 895 (citations omitted). See Javits Amendment, Pub.L. No. 93-380, § 844, 88 Stat. 612 (1974). The appellate court also concluded that the Policy Interpretation, because it is a “considered interpretation” of the agency’s own regulation, warrants “substantial deference.” Cohen, 991 F.2d at 896-7. As I have discussed above, supra part III.B, this Court is bound by the law of the circuit. As a result, this Opinion and Order must accord controlling weight to the regulations and substantial deference to the Policy Interpretation. However, I revisit the issue of deference in order to address defendants’ position that the First Circuit did not have the benefit of newly developed arguments and information or that “no court has carefully examined the issue of the degree of deference, if any, to which the OCR’s Policy Interpretation and Investigator’s Manual are entitled.” Defs.’ Post-Trial Mem. at 25. It is well-settled that where Congress has expressly authorized an agency to issue regulations, those agency regulations are binding on the courts “unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). See also National Latino Media Coalition v. F.C.C., 816 F.2d 785, 788 (D.C.Cir.1987) (stating that “[wjhen Congress dele gates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law”). Here, Congress explicitly delegated rule-making authority to DED, see supra note 23, stating: The Secretary shall prepare and publish, not later than 30 days after the date of enactment of this Act, proposed regulations implementing the provisions of title IX of the Education Amendments of 1972 relating to the prohibition of sex discrimination in federally assisted education programs which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports. Javits Amendment, Pub.L. No. 93-380, § 844, 88 Stat. 612 (1974). This delegation of authority specifically directed DED to include within its intercollegiate athletic regulations “reasonable provisions considering the nature of particular sports.” Thus, Congress included within its conferral of rule-making authority a specific directive with respect to the intercollegiate athletic regulations; this directive mandates the inclusion of one particular subject but does not otherwise limit the broad scope of authority delegated to the agency. The agency’s regulations were duly approved by President Ford in 1975. This approval was required by Title IX itself, which provides that no “rule, regulation, or order” an agency is empowered to enact pursuant to Title IX shall become effective unless and until approved by the President. 20 U.S.C. § 1682. The regulations, which were designed to address extensive evidence of sex discrimination in intercollegiate athletics, clearly meet the Chevron standard; they are not arbitrary, capricious or manifestly contrary to Title IX. Kelley, 35 F.3d at 270. An agency’s interpretation of its own regulations, while not given the force of law, is entitled to substantial deference. Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986) (citations omitted). See also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (noting that “[w]hen the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order”). The Supreme Court explained its reasoning for this conclusion in Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 151, 111 S.Ct. 1171, 1176, 113 L.Ed.2d 117 (1991) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 556, 558, 100 S.Ct. 790, 792, 793, 63 L.Ed.2d 22 (1980)): Because applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers. Thus, for all practical purposes, an agency’s interpretation of its own regulations is accorded the force of law unless such interpretation is clearly erroneous or inconsistent with the regulation. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). See also McCuin v. Secretary of Health and Human Sens., 817 F.2d 161, 168 (1st Cir.1987) (the interpretation “must be reasonable in view of the language of the regulations and the policies they were meant to implement”). As the First Circuit has held, the Policy Interpretation should be given substantial weight. Cohen, 991 F.2d at 896-97. The Policy Interpretation is a “considered” document: the original draft of the Policy Interpretation was published for public comment, the agency received over 700 comments, and agency staff visited eight universities to evaluate how the Policy Interpretation and other alternatives would be applied in practice. 44 Fed.Reg. at 71,413. Cf. Udall, 380 U.S. at 17, 85 S.Ct. at 801 (noting with approval that the agency’s interpretation had been a matter of public record and discussion). In addition, since publication of the Policy Interpretation, Congress has had the opportunity to disapprove of the Policy Interpretation, see Civil Rights Restoration Act of 1987, 20 U.S.C. § 1687 (1988); however, Congress instead chose to reaffirm its intent that Title IX’s prohibition against discrimination be broadly construed. See Cohen, 991 F.2d at 894 (recognizing that record of the floor debate on Restoration Act “leaves little doubt that the enactment was aimed, in part, at creating a more level playing field for female athletes”) (citations omitted). Cf. North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 1925, 72 L.Ed.2d 299 (1982) (where “an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned”) (citations omitted). Defendants dispute the First Circuit and this Court’s determination of the degree of judicial deference appropriately accorded to the agency’s regulations and interpretations. They argue that the agency exceeded its delegated rulemaking authority, and that the documents are therefore “interpretive” rather than “legislative.” Defendants argue that the rulemaking authority Congress delegated to the agency was limited by the Javits Amendment to provisions concerning the nature of particular sports. Thus, defendants conclude that to the extent the regulations went beyond that specific directive they are “interpretive” rather than “legislative” and are thus entitled to the less deferential standard of review articulated in the germinal cases Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944) and General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). Defendants’ relianee on Skidmore and Gilbert is misplaced because these eases concern agency guidelines issued in the absence of an explicit Congressional delegation of authority. Here, however, Congress did authorize the agency to promulgate regulations implementing Title IX. This Court is persuaded that “the directive that those regulations ‘include reasonable provisions considering the nature of particular sports’ does not limit the scope of the delegation; it merely compels the agency to include such provisions in its broader regulatory framework.” Proposed Findings of Fact and Conclusions of Law of Pis. at 28. As I noted above, these regulations must therefore be given controlling weight. Similarly, the Policy Interpretation was issued as a result of the duly delegated rulemaking authority entrusted to the agency, and is therefore entitled to substantial deference. Cf. Martin, 499 U.S. at 151, 111 S.Ct. at 1176 (where the Court acknowledged that an agency’s power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers). Defendants further contend that the Policy Interpretation, because it was never approved by the President, does not have the binding effect of “rules, regulations, or orders” authorized by 20 U.S.C. § 1682. The Policy Interpretation, however, is not a rule, regulation, or order, but is a guideline designed to interpret a rule, regulation, or order, namely, the agency’s own regulations published at 34 C.F.R. § 106. The Policy Interpretation therefore need not be approved by the President in order to become effective. In sum, this Court must abide by the Policy Interpretation unless it is clearly erroneous or inconsistent with the regulations. See Larionojf, 431 U.S. at 872, 97 S.Ct. at 2155. Defendants protest that the Policy Interpretation contravenes the intent of Title IX in at least two respects. First, they claim that the Policy Interpretation, as interpreted by this Court, renders Title IX an affirmative action statute, in derogation of Title IX, which specifically provides that it shall not be interpreted to require preferential or disparate treatment to members of one sex. 20 U.S.C. § 1681(b). This claim, however, is premised on a misunderstanding of the Policy Interpretation. The Policy Interpretation’s three prong test does not mandate statistical balancing. In fact, the test is designed to avoid an absolute requirement of numerical equality. Where substantial proportionality has not been achieved (prong one), an institution must be found in compliance if it demonstrates that it has a continuing practice of expanding the athletic opportunities of the underrepresented sex (prong two) or if its existing program fully and effectively accommodates the interests and abilities of the underrepresented sex (prong three). Kelley, 35 F.3d at 271. Thus, the test encourages equality but recognizes that some institutions may be unable to attain this goal through no fault of their own; in these cases, the test provides alternatives to statistical parity. Second, defendants claim that OCR ignored the Javits Amendment’s instruction to consider the nature of particular sports in drafting reasonable provisions with respect to intercollegiate athletics. “[D]ue to the nature of particular sports, there are upwards [of] 150 to 175 ... participation opportunities for men (on football, wrestling, lacrosse and the like) that cannot be available to women.” Defs.’ Posh-Trial Mem. at 27. On the contrary, the Policy Interpretation does consider the nature of particular sports. For example, it permits the operation of separate teams for members of each sex and does not require a school to sponsor a women’s team for every men’s team offered and vice versa. In addition, it recognizes that different expenditures on men’s and women’s sports may be permissible if based on factors inherent to the operation of specific sports. The fact that the Policy Interpretation does not consider and accommodate the nature of different sports in the precise manner advocated by defendants does not render it unreasonable. See Cohen, 991 F.2d at 899. VI. LEGAL ANALYSIS A. The Three Prong Test The plaintiffs contend that the Brown athletic program is in violation of the “Equal Opportunity” provision of the Title IX athletics regulations. Therefore, I focus my analysis on the Policy Interpretation to “elarif[y] the obligations which [Brown has] to provide equal opportunities in [its] athletic programs.” 44 Fed.Reg. at 71,415. I must assess compliance by looking to the regulations applicable in this case. These regulations, as noted above, are: 34 C.F.R. § 106.37(c) (distribution of athletic scholarships — not applicable to this case), 34 C.F.R. § 106.41(a) and (b) (general non-discrimination pronouncement but allowing for separate teams — not at issue in this case), and 34 C.F.R. § 106.41(c) (requiring institutions to provide equal opportunity to both sexes in athletics programs offered, and listing ten factors for consideration in assessing compliance). The subject of this lawsuit is whether or not Brown complies with the “Equal Opportunity” provision found at 34 C.F.R. § 106.41(c). Litigation has primarily focused on the first of the ten “equal opportunity” factors which asks “whether the selection of sports and levels of competition effectively accommodate the interest and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). Determining compliance with this factor requires application of the Policy Interpretation’s three prong test, recited supra part IV.C, which delineates the standards for enforcement of 34 C.F.R. § 106.41(c)(1). Because the proper interpretation of the three prong test is the most hotly contested legal issue in this case, I will extensively analyze and address the relevant arguments presented by the parties. 1. Prong One Am institution complies with the three prong test if it meets prong one of the analysis and no other. Plaintiffs bear the burden of proving that the institution does not satisfy prong one. Prong one asks: Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments 44 Fed.Reg. at 71,418. I conclude that an institution satisfies prong one provided that the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment. “Thus, a university which does not wish to engage in extensive compliance analysis may stay on the sunny side of Title IX simply by maintaining gender parity between its student body and its athletic lineup.” Cohen, 991 F.2d at 897-98. I now discuss the meaning of three contested elements of prong one. a. Intercollegiate Level Athletics The ’Policy Interpretation expressly states that it is intended to apply to intercollegiate athletics. It explains, however, that because the regulations distinguish between club sports and intercollegiate sports, “under this Policy Interpretation, club teams will not be considered to be intercollegiate teams except in those instances where they regularly participate in varsity competition.” 44 Fed. Reg. at 71,413 n. 1. It was not seriously contended until the eleventh hour, nor did the evidence show, that any of Brown’s club teams should be considered to be presently operating as intercollegiate teams under this definition. Therefore, I do not treat any of Brown’s club programs as intercollegiate teams under prong one. On the other hand, Brown’s donor-funded varsity teams resemble university-funded varsity teams in some aspects and club teams in others. See supra notes 6-13 and accompanying text. Thus, the question arises whether donor-funded teams may be considered to be “intercollegiate” teams for the purposes of prong one. It is evident that Brown’s donor-funded teams operate at a disadvantage in comparison to its university-funded varsity teams. The issue with regard to funding sources is not where the funding comes from but the extent to which funding comes at all to donor-funded teams. Donor-funded teams generally have much less money, have no commitment from the university that the team will be supported in a year when fund raising efforts are less successful, and must expend gift funds for privileges that Brown provides to university-funded teams at no cost to those teams. As a result of their unfunded status, most of the donor-funded teams are prevented from reaching their full athletic potential. However, the evidence presented at trial suggests that, on the whole, Brown’s donor-funded teams do engage in “varsity level” competition. Thus, I treat both donor-funded and university-funded varsity teams as intercollegiate teams but as positioned at distinct levels within the athletic hierarchy. b. Substantially Proportionate The phrase “substantially proportionate” is necessarily an elusive concept. Consequently, I turn toward other factors to inform my interpretation of this term. Because a positive showing on prong one terminates the inquiry, providing a “safe harbor” for the institution, Cohen, 991 F.2d at 897, logic suggests that “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute. At the same time, “substantially proportionate” accounts for the possibility of minor fluctuations in the undergraduate population and in the athletic program from one year to the next. Thus, substantial proportionality is properly found. only where the institution’s intercollegiate athletic program mirrors the student enrollment as closely as possible. This definition takes into account any small variations that are beyond the institution’s ability to control or predict. Defendants argue that “substantially proportionate” must be interpreted very liberally, in favor of the institution, lest a sudden surge in numbers on one team propel a complying institution into violation. Defendants emphasize that the gender composition of the athletic program is both unpredictable and out of Brown’s control, asserting that “Brown is stuck with whomever shows up on campus.” Trial Tr. 12/16/94 at 61. This position ignores several significant facts. First, prong one compliance is assessed by comparing the gender ratio of the student enrollment with the gender ratio of the entire intercollegiate athletic program. It is unlikely that numerical fluctuations on an individual team will significantly alter the gender ratio of any sizable athletic program. In fact, testimony in the trial revealed that the fluctuations, from year to year, of the gender balance in the athletic program at Brown were minimal. Second, this position fails to acknowledge that when significant numerical changes did occur in the intercollegiate athletic program as a whole, these changes were within the control of the University. Plaintiffs expert, Dr. Christine Grant, Athletic Director for the women’s program at the University of Iowa and a former official of a number of collegiate athletic associations, testified persuasively that a university “predetermines” the approximate number of athletic participants and the male to female ratio. I conclude that Brown does predetermine the gender balance of its athletic program through the selection of sports it offers (some sports, by their nature, require more players), the size of the teams it maintains (as dictated by each coach’s preference), the quality and number of coaches it hires, and the recruiting and admissions practices it implements. Cf Prelim.Inj.’Hr’g Tr. 10/26/92 at 20. For example, coaches at Brown acknowledged the prominent role recruiting plays in sustaining Brown’s varsity athletic program. Most coaches testified that they determine an ideal team size and then recruit the requisite number of athletes to reach that goal. Because recruits constitute the great majority of athletes on nearly all of Brown’s university-funded varsity teams, the University should not have been surprised by the gender mix of interested athletes on campus. c. Participation Opportunities The First Circuit, in sustaining the preliminary injunction, did not define the term “participation opportunities” as set forth in prong one of the Policy Interpretation. It now rests upon me to formulate a definition. For the purposes of the three prong test, I hold that the “participation opportunities” offered by an institution are measured by counting the actual participants on intercollegiate teams. The number of participants in Brown’s varsity athletic program accurately reflects the number of participation opportunities Brown offers because the University, through its practices “predetermines” the number of athletic positions available to each gender. In addition, as noted below, any other measure of participation opportunities is infeasible. While the First Circuit did not explicitly define “participation opportunities” as participation rates, it implicitly adopted and applied this definition in its prong one analysis. Defendants contend, however, that the concept “participation opportunity” carries a very different practical meaning from the simpler concept of “participation.” They argue that the intercollegiate athletic participation opportunities offered at Brown should be measured by counting each team’s filled and unfilled athletic slots. The defendants offer several methods of determining the exact number of slots that they contend are available but unfilled. First, Brown proposes that participation opportunities should include those additional athletic slots that women’s team coaches testified they were able to support, given current resources. This method is flawed because many coaches, while technically able to support more team members, restrict their team size according to their personal coaching philosophies. Thus, these theoretical opportunities are not actually available to athletic hopefuls. I also note that even if I were to accept this definition of participation opportunities, or any other measure of “unfilled but available” positions, I would be compelled to compare the women’s and the men’s theoretically available additional spots. Second, Brown asserts that each team is necessarily capable of carrying, at a minimum, the number of athletic positions it has supported in recent history. They contend that each team therefore affords at least that number of opportunities to participate, even during years in which the actual participation rates fall short of their historical high. I must reject the assertion that peak numbers achieved during some year in the past are the most accurate measure of participation opportunities presently offered by an institution. Numbers from the current or most recent, complete competitive season provide the most representative quantification of participation opportunities presently offered. Third, in the alternative, Brown contends that each women’s team for which there is an “equivalent” men’s team is by definition able to carry at least the number of athletic positions carried by its counterpart in the men’s program. Brown maintains that each women’s team, therefore, affords at least as many participation opportunities as its “matching” men’s team. I decline to adopt this methodology. It is not immediately apparent why the size of men’s teams should set the standard for women’s team sizes. Nor does the evidence presented at trial justify this approach. Men’s and women’s teams of the same name are sufficiently distinct from one another to invalidate any approach that rests upon an assumption of similarity. I conclude that intercollegiate “ ‘[ajthletic opportunities’ means real opportunities, not illusory ones,” Homer, 43 F.3d at 274 (quoting Williams v. School Dist. of Bethlehem, 998 F.2d 168, 175 (3d Cir.1993)), and therefore should be measured by counting actual participants. Finally, defendants offer an independent interpretation of the meaning of “participation opportunities” in the context of prong one. They define a participation opportunity as a chance for an interested person to participate. Defendants contend that where the student body is comprised of equal numbers of men and women, equality means “offering” the chance to participate in athletics to an equal number of men and women. They postulate that if students were offered a hypothetical opportunity to participate, the students would actually participate in varsity athletics in accordance with the relative interest of their respective genders. Thus, where the gender ratio of a university’s interested student population is substantially proportionate to the gender ratio of its athletic program, it may be assumed that men and women in the student body were “offered” an equal “opportunity” to participate. Therefore, defendants claim, Brown provides equal “participation opportunities” if the ratio of men to women among varsity athletes is substantially proportionate to the ratio of men to women among students interested in participating in varsity athletics. Defendants conclude that, in order to succeed on prong one, plaintiffs bear the burden of proving that the percentage of women among varsity athletes is not substantially proportionate to the percentage of women among students interested in participating in varsity athletics. Defendants, through their expert Dr. Finis Welch, a prominent labor economist, borrow from Title VII employment discrimination jurisprudence. There, the relevant comparison is between the qualified applicant pool and the work place demographics, rather than between the population of the United States and the work place demographics. This analogy is the basis for defendants’ argument that the relevant comparison in Title IX cases is between the interested potential varsity athlete pool, however defined, and the make-up of Brown’s athletic program, rather than between the student enrollment and the athletic program. Comparison to Title VII is inapposite, however. Title VII seeks to determine whether gender-neutral job openings have been filled without regard to gender. Title IX, on the other hand, was designed to address the reality that sports teams, unlike the vast majority of jobs, do have official gender requirements, and this statute accordingly approaches the concept of discrimination differently from Title VII. Cf. Kelley, 35 F.3d at 270 (stating that “Congress itself recognized that addressing discrimination in athletics presented a unique set of problems not raised in areas such as employment and academics”) (citations omitted). Title IX establishes a legal presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments, unless the university meets one of the two exonerating situations set forth in prongs two and three. See Kelley, 35 F.3d at 271. Entirely apart from the flaws in the Title VII-Title IX analogy, there are a number of other problems with interpreting prong one to require that a university afford athletic opportunities to men and women in proportion to their relative interests in athletics. Under this Court’s interpretation of prong one, concerned parties can assess an institution’s compliance simply by comparing the gender ratio of participating athletes with the gender ratio of the student body, both of which are easily ascertained. Under the defendants’ theory, a concerned party must undertake a complicated assessment of “interested” students before making any comparisons. Any such assessment will be meaningless since it is an impossible task to quantify latent and changing interests. Thus, in addition to contravening the plain language of prong one, defendants’ interpretation imposes a heavy burden on student-plaintiffs, the courts, and institutions who wish to monitor their own compliance. In any case, it is unclear what population should be surveyed to assess the interest of the “qualified applicant pool,” even if it were possible to do so. The possible survey populations range from matriculated students, to all actual Brown applicants, to all academically able potential varsity participants. In an analogy to Title VII and the “qualified applicant pool,” defendants argue that the relevant population consists only of those men and women who might be interested and able to participate in varsity athletics. Uninterested and unathletic persons are irrelevant to any assessment of the substantial proportionality between the athletic program and the student enrollment. The question, under defendants’ theory, then becomes who belongs to the “qualified applicant pool” from which Brown might draw student-athletes. Each of the possible “pools” from which Brown might draw varsity athletes has inherent theoretical and practical problems as a survey population, which confirms my initial conclusion that defendants’ interpretation of prong one is incorrect. I will now discuss each of the possible survey pools. (i) Matriculated Students Because Brown, as a Division I school, actively recruits nationwide most of the students who play on its varsity teams, the survey population of potential participants must be broader than the pool of matriculated students. What students are present on campus to participate in a survey of interests has already been predetermined through the recruiting practices of the coaches. What teams are established and can recruit or qualify for admissions preferences has already been predetermined by Brown. Thus, the interest present on campus is controlled by Brown; to then suggest that Brown must only satisfy the relative interests of students present on campus is circular. (ii) Actual Brown Applicants Defendants have suggested that an appropriate survey population might consist of all students who applied to Brown. They claim that several already existing questions on Brown’s application would provide an easy determination of the relative interests in varsity athletics. There are two problems with using this group of students as the determinative “pool.” First, it revisits the conceptual problems inherent in attempting to measure “interest.” See supra note 43. It cannot be true that questions on Brown’s application provide a rehable measure of interest that will be acted upon given the opportunity. Although^ many women who later committed to attend Brown expressed some type of interest in sports at the time of application, far fewer actually participate in Brown’s intercollegiate athletic program. Second, using the pool of actual Brown applicants fails to consider the fact that college applicants interested in a sport not offered as a varsity sport at Brown may not even apply to Brown. A survey of actual Brown applicants would thus fail to capture the interest of those student-athletes who choose not to apply due to the limits of Brown’s program offerings. To suggest that Brown need only satisfy the interests of actual applicants where Brown’s selection of program offerings affects who applies to the school in the first place is illogical. (iii) Academically Able Potential Varsity Participants If one were to accept the defendants’ analogy to the “qualified applicant pool” of Title VII, the most appropriate survey population would consist of all academically able potential varsity participants. The “qualified applicant pool” for Brown, as a Division I institution, would consist of all prospective college applicants who might apply to or be recruited by Brown if Brown offered their preferred varsity sports. Because Brown seeks athletic recruits from across the nation, the difficulties in identifying all such persons in order to construct a representative survey population may be insurmountable. In addition, even a successful survey of all academically able potential Brown applicants could not accurately measure interest in certain sports, crew, for example, that commonly develop only after matriculation. Nor can a survey of this population account for the extent to which opportunities drive interests. See, e.g., testimony of Dr. Welch, Trial Tr. 11/29/94 at 92 (question asking, ‘Would you agree with the following statement? If Brown provides far more opportunities for women, then maybe the percentage of interested women will rise?” and witness replying, “Sure, I don’t see anything wrong with that”). For all the foregoing reasons, I reject defendants’ alternative interpretation of prong one. Under the Policy Interpretation, an institution may fail to provide participation opportunities substantially proportionate to student enrollment but still comply with the Title IX regulatory scheme. The Policy Interpretation recognizes that a school might make every attempt to accommodate women’s interests and abilities and still not achieve substantial proportionality. Therefore, an institution is permitted to maintain an athletic program that provides substantially more opportunities to students of one gender than to the other if it comports with one of the two other prongs. In this way, the Policy Interpr