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STEPHEN NEAL; JONATHAN
ARCHULETA; BRENT CAMERON;
MATT CORONA; MOSES DELFIN;
LIONEL HALSEY; BRAD HULL; MIKE
MENDOZA; KIRK METZ; JASON
RILEY; ANDY VARNER; LARRY
VASQUEZ; NATHAN VASQUEZ; ERIN
KELLY; NATALIE MORROW; FRIENDS
OF BAKERSFIELD WRESTLING; KERN
COUNTY WRESTLING ASSOCIATION;
NATIONAL WRESTLING COACHES
ASSOCIATION; DAVID AFOA; NICK
BRADLEY; ELIZAR CEBALLOS;
No. 99-15316
RAPHAEL DAVIS; RUBEN DELEON;
D.C. No.
DON DELFIN; JOSH FACTOR; JEFF
CV-97-05009-REC
GARDNER; MAX HARRIS; THOMAS
JUAREZ; BRETT LOBEL; KEVIN
OPINION
MEANS; JASON MERRELL; IAN
NELMS; ROBBIE ODELL; TITO ORTIZ;
JOSH READY; MAX SCHURKAMP; JOE
YOUNAN; SEBA CLEMENTE,
Plaintiffs-Appellees,

and

JEREMY BRIDGES; DAN CORPSTEIN;
TONY DE SOUZA; DEMETRIO DURAN;
DAVID MOLANO; JASON
RAMSTETTER; ERIC ROWE; RYAN
SHEETS; COBY WRIGHT; JESSICA
AREVALO; CINDY JORGENSEN;

14591


JESSICA RAMSEY; ABBY
SCHWARZBERG; LORI STOCKER;
DIANA WESENDUNK,
Plaintiffs,

v.

THE BOARD OF TRUSTEES OF THE

CALIFORNIA STATE UNIVERSITIES;
CALIFORNIA STATE UNIVERSITY,
BAKERSFIELD; BARRY MUNITZ;
TOMAS ARCINIEGA; RUDY CARVAJAL,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, Chief District Judge, Presiding

Argued and Submitted
November 4, 1999--San Francisco, California

Filed December 15, 1999

Before: William C. Canby, Jr., Cynthia Holcomb Hall, and
Susan P. Graber, Circuit Judges.

Opinion by Judge Hall

_________________________________________________________________

COUNSEL

Peter W. Davis, Crosby, Heafey, Roach & May, San Fran-
cisco, California, for the defendants-appellants.

Mark Martel, Palo Alto, California, for the plaintiffs-
appellees.

Josephine R. Potuto, University of Nebraska College of Law,
Lincoln, Nebraska, for the amici.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

The instant case requires us to consider whether Title IX
prevents a university in which male students occupy a dispro-
portionately high percentage of athletic roster spots from
making gender-conscious decisions to reduce the proportion
of roster spots assigned to men. We hold that Title IX does
not bar such remedial actions.

The Board of Trustees of the California State Universities
and other defendants appeal from the district court's order
granting the motion of Neal and other plaintiffs for a prelimi-
nary injunction. Neal's suit alleged that the decision of Cali-
fornia State University, Bakersfield ("CSUB") to reduce the
number of spots on its men's wrestling team, undertaken as
part of a university-wide program to achieve "substantial
proportionality" between each gender's participation in var-
sity sports and its composition in the campus's student body,
violated Title IX and the Equal Protection Clause of the
United States Constitution. The district court determined that
regulations promulgated pursuant to Title IX, and CSUB's
program, which was modeled after those regulations, violated
Title IX. The district court declined to reach the merits of the
constitutional challenge, but did hold that the regulations
interpreting Title IX "raised serious constitutional questions"
and rejected Plaintiffs' construction of Title IX on that alter-
native ground. This Court has jurisdiction to review the dis-
trict court's granting of a preliminary injunction under 28
U.S.C. S 1292(a)(1). We reverse, and vacate the injunction.

I.

Defendant/Appellant CSUB is a large public university
where female students outnumbered male students by roughly
64% to 36% in 1996. The composition of CSUB's varsity ath-
letic rosters, however, was quite different. In the 1992-93 aca-
demic year, male students took 61% of the university's spots
on athletic rosters and received 68% of CSUB's available ath-
letic scholarship money.

This imbalance helped prompt a lawsuit by the California
chapter of the National Organization for Women, alleging that
the California State University system was violating a state
law that is similar to the federal government's Title IX. That
lawsuit eventually settled, resulting in a consent decree man-
dating, inter alia, that each Cal State campus have a propor-
tion of female athletes that was within five percentage points
of the proportion of female undergraduate students at that
school. This portion of the consent decree was patterned after
the first part of the three-part Title IX compliance test promul-
gated by the Department of Education's Office for Civil
Rights ("OCR").

When the university agreed to the consent decree, Califor-
nia was slowly emerging from a recession, and state funding
for higher education was declining. As a result, CSUB admin-
istrators were seriously constrained in what they could spend
on athletic programs. The university chose to adopt squad size
targets, which would encourage the expansion of the women's
teams while limiting the size of the men's teams. In order to
comply with the consent decree, CSUB opted for smaller
men's teams across the board, rejecting the alternative of
eliminating some men's teams entirely. CSUB's plan was
designed to bring it into compliance with the consent decree
by the 1997-98 academic year, meaning that female students
would fill at least 55% of the spaces on the school's athletic
teams.1

As part of this across-the-board reduction in the number of
slots available to men's athletic teams, the size of the men's
wrestling team was capped at 27. Although the reduction was
protested vigorously by wrestling coach Terry Kerr, and team
captain Stephen Neal expressed concerns that a smaller squad
would prove less competitive, the smaller CSUB team per-
formed exceptionally well, winning the Pac-10 Conference
title and finishing third in the nation in 1996. In 1996-97, the
men's wrestling roster was capped at 25, and four of these
spots went unused. Nevertheless, in response to the rumored
elimination of the men's wrestling team, on January 10, 1997,
the team filed the instant lawsuit, alleging that the university's
policy capping the size of the men's team constituted discrim-
ination on the basis of gender in violation of Title IX and the
Equal Protection Clause of the Federal Constitution.

The team sought declaratory and injunctive relief to prevent
the squad size reductions. CSUB responded by filing a motion
to dismiss. The district court initially granted a temporary
restraining order preventing the reductions, then granted a
preliminary injunction to prevent CSUB from reducing the
size of the wrestling team. The district court concluded as a
matter of fact that CSUB's primary motivation for capping
the size of the men's teams was to meet the gender propor-
tionality requirements in the consent decree. The district court
concluded as a matter of law that capping the male teams in
order to comply with the consent decree violated Title IX.
Although the district court refused to rule on Plaintiffs' equal
protection challenge to the CSUB policy, the court did reject
a reading of Title IX that created a "safe harbor " for any
school that achieved substantial proportionality between the
percentage of athletes of one gender and the percentage of
students of that same gender. The court concluded that such
an approach would raise serious questions under the Equal
Protection Clause, and that a desire to avoid reaching such
questions, in and of itself, constituted "ample reason for
rejecting the safe harbor idea as part of Title IX."

II.

On appeal, this Court reviews the district court's grant of
a preliminary injunction for abuse of discretion, and "that dis-
cretion is abused where the district court based its ruling on
an erroneous view of the law or on a clearly erroneous assess-
ment of the evidence." Roe v. Anderson, 134 F.3d 1400, 1402
(9th Cir. 1998) (citation and internal quotation marks omit-
ted), aff'd sub nom. Saenz v. Roe, 119 S. Ct. 1518 (1999). The
district court's interpretation of Title IX is reviewed de novo.

See Bay Area Addiction Research & Treatment, Inc. v. City
of Antioch, 179 F.3d 725, 730 (9th Cir. 1999).

III.

This case has its origins in Congress's passage of Title IX
in 1972. Title IX was Congress's response to significant con-
cerns about discrimination against women in education. See
North Haven Bd. of Educ. v. Bell, 
456 U.S. 512
, 523-524 &
n.13 (1982). In the words of the legislation's primary sponsor,
Senator Birch Bayh, Title IX was enacted to "provide for the
women of America something that is rightfully theirs -- an
equal chance to attend the schools of their choice, to develop
the skills they want, and to apply those skills with the knowl-
edge that they will have a fair chance to secure the jobs of
their choice with equal pay for equal work." 118 Cong. Rec.
5808 (1972); see also Bell, 
456 U.S. at 526
-27 ("Senator
Bayh's remarks, as those of the sponsor of the language ulti-
mately enacted, are an authoritative guide to the statute's con-
struction . . . . And, because SS 901 and 902 originated as a
floor amendment . . . Senator Bayh's statements -- which
were made on the same day the amendment was passed .. .
are the only authoritative indications of congressional intent
regarding the scope of SS 901 and 902.").

The regulations promulgated pursuant to Title IX require
schools receiving federal funding to "provide equal athletic
opportunity for members of both sexes". 34 C.F.R.
S 106.41(c). In evaluating schools' compliance with that pro-
vision, one factor that will be considered is "whether the
selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both
sexes". Id. at S 106.41(c)(1). At the same time, "it would
require blinders to ignore that the motivation for promulgation
of the regulation on athletics was the historic emphasis on
boys' athletic programs to the exclusion of girls' athletic pro-
grams in . . . colleges." Williams v. School Dist. of Bethlehem,
998 F.2d 168, 175 (3d Cir. 1993). The drafters of these regu-
lations recognized a situation that Congress well understood:
Male athletes had been given an enormous head start in the
race against their female counterparts for athletic resources,
and Title IX would prompt universities to level the proverbial
playing field.

Appellees recognize that, given this backdrop, it would be
imprudent to argue that Title IX prohibits the use of all
gender-conscious remedies. Appellees therefore suggest that
gender-conscious remedies are appropriate only when neces-
sary to ensure that schools provide opportunities to males and
females in proportion to their relative levels of interest in
sports participation. By contrast, Appellants contend that
schools may make gender-conscious decisions about sports-
funding levels to correct for an imbalance between the com-
position of the undergraduate student body and the composi-
tion of the undergraduate student athletic participants pool.
This disagreement has real significance: Men's expressed
interest in participating in varsity sports is apparently higher
than women's at the present time -- although the "interest
gap" continues to narrow -- so permitting gender-conscious
remedies until the proportions of students and athletes are
roughly proportional gives universities more remedial free-
dom than permitting remedies only until expressed interest
and varsity roster spots correspond.

Appellees' argument that equal opportunity is achieved
when each gender's athletic participation roughly matches its
interest in participating is hardly novel. Several courts of
appeals have considered and rejected Appellees' approach as
fundamentally inconsistent with the purpose of Title IX.

Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993)
("Cohen I"),2 was the first case to rule on the issues raised in
the instant appeal. In Cohen I, female members of Brown's
volleyball and gymnastics teams brought suit under Title IX
after the university eliminated their teams. Women comprised
48% of the school's student body, but less than 37% of the
athletes on campus. See id. at 892.

The Cohen I court interpreted Title IX's requirements in
light of the three-part test set forth in the Policy Interpretation
promulgated by the Department of Health, Education, and
Welfare in 1979.3 That test is used to assess whether a
school's athletic program is in compliance with Title IX. A
university's athletics program is Title IX-compliant if it satis-
fies one of the following conditions:

       . . . [I]ntercollegiate level participation opportunities
       for male and female students are provided in num-
       bers substantially proportionate to their respective
       enrollments; or

       (2) Where the members of one sex have been and
       are underrepresented among intercollegiate athletes,
       . . . the institution can show a history and continuing
       practice of program expansion which is demonstra-
       bly responsive to the developing interest and abilities
       of the members of that sex; or

       (3) Where the members of one sex are underrepre-
       sented among intercollegiate athletes, and the institu-
       tion cannot show a continuing practice of program
       expansion such as that cited above, . . . it can be
       demonstrated that the interests and abilities of the
       members of that sex have been fully and effectively
       accommodated by the present program.

44 Fed. Reg. 71,418 (1979). Appellees attack only the first
part of this test, which declares a university Title IX-
compliant if participation levels for each gender are
"substantially proportionate" to their representation in the stu-
dent body.

The Cohen I court explicitly rejected Brown's argument
that, because male athletes were more interested in athletics,
the school could bring itself into Title IX compliance by pro-
viding females with fewer athletic roster spots "as long as the
school's response is in direct proportion to the comparative
levels of interest." Cohen I, 991 F.2d at 899. In Cohen II, the
rejection of Brown's argument was even more emphatic:
"Brown's relative interests approach cannot withstand scru-
tiny on either legal or policy grounds, because it disadvan-
tages women and undermines the remedial purposes of Title
IX by limiting required program expansion for the underre-
presented sex to the status quo level of relative interests."
Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996)
("Cohen II") (citations and internal quotations marks omit-
ted).

[1] Under Cohen I, if a university wanted to comply with
the first part of the three-part test, it had to provide "athletics
opportunities in proportion to the gender composition of the
student body," not in proportion to the expressed interests of
men and women. Id. at 176; see also Favia v. Indiana Univ.
of Penn., 7 F.3d 332, 343 (3d Cir. 1993) (observing that a uni-
versity whose student body was 56% female, but whose ath-
letic teams were 43% female, would "appear not to be in Title
IX compliance"). The reason for Cohen I's rejection of
Brown's/Appellees' "interest" test was clear enough: "Given
that the survey of interests and abilities would begin under
circumstances where men's athletic teams have a considerable
head start, such a rule would almost certainly blunt the exhor-
tation that schools should `take into account the nationally
increasing levels of women's interests and abilities' and avoid
`disadvantag[ing] members of an underrepresented sex . . . .' "
991 F.2d at 900 (quoting 44 Fed. Reg. at 71,417). In other
words, Appellees' interpretation of Title IX would have
allowed universities to do little or nothing to equalize men's
and women's opportunities if they could point to data show-
ing that women were less interested in sports. But a central
aspect of Title IX's purpose was to encourage  women to par-
ticipate in sports: The increased number of roster spots and
scholarships reserved for women would gradually increase
demand among women for those roster spots and scholarships.4
As the First Circuit held in Cohen II, "[t]o assert that Title IX
permits institutions to provide fewer athletics participation
opportunities for women than for men, based upon the prem-
ise that women are less interested in sports than are men, is
(among other things) to ignore the fact that Title IX was
enacted in order to remedy discrimination that results from
stereotyped notions of women's interests and abilities."
Cohen II, 101 F.3d at 178-79; cf. Horner v. Kentucky High
Sch. Athletic Ass'n, 43 F.3d 265, 272 (6th Cir. 1994)
("Moreover, while reliance on the interest of the member
schools in adding a sanctioned sport may appear to be gender-
neutral, it is a method which has great potential for perpetuat-
ing gender-based discrimination. Under the district court's
reasoning, a school system's compliance with Title IX can be
measured by the personal views of administrators of individ-
ual schools, irrespective of whether these views achieve Title
IX's equal opportunity requirement.").
Appellees and the district court relied heavily on a lone dis-
trict court opinion, Pederson v. Louisiana State Univ., 912 F.
Supp. 892 (M.D. La. 1996), which criticized the Policy Inter-
pretation test's first part. However, this criticism is entirely
dicta: The court still found Louisiana State University
("LSU") to be in violation of Title IX and ordered it to bring
itself into Title IX compliance immediately, hinting that it
should do so by funding women's soccer and softball teams.
See id. at 922. The court never addressed the issue of whether
LSU could bring itself into Title IX compliance by cutting the
opportunities available to male athletes because the parties
there never suggested such an approach. Moreover, the
Pederson court misunderstood the reasoning behind Cohen,
Roberts, and Horner. The Pederson  court held that these cir-
cuit court opinions relied upon an erroneous assumption that
men and women were equally interested in playing sports. See
id. at 913-14. As is explained above, those courts emphasized
that women's interest in sports appeared to be lower than
men's, but that the genders' interests were slowly but surely
converging, which was precisely the reason why requiring
only that each gender's expressed interest in participating be
accommodated equally would freeze the inequality of the sta-
tus quo.

[2] Title IX is a dynamic statute, not a static one. It envi-
sions continuing progress toward the goal of equal opportu-
nity for all athletes and recognizes that, where society has
conditioned women to expect less than their fair share of the
athletic opportunities, women's interest in participating in
sports will not rise to a par with men's overnight. The per-
centage of college athletes who are women rose from 15% in
1972 to 37% in 1998, and Title IX is at least partially respon-
sible for this trend of increased participation by women. See
Trudy Saunders Bredthauer, Twenty-Five Years Under Title
IX: Have We Made Progress?, 31 Creighton L. Rev. 1107,
1107 (1998). Title IX has altered women's preferences, mak-
ing them more interested in sports, and more likely to become
student athletes. See Note, Cheering on Women and Girls in
Sports: Using Title IX to Fight Gender Role Oppression, 110
Harv. L. Rev. 1627, 1640-41 (1997). Adopting Appellees'
interest-based test for Title IX compliance would hinder, and
quite possibly reverse, the steady increases in women's partic-
ipation and interest in sports that have followed Title IX's
enactment.5

[3] A number of courts of appeals have addressed another
potentially dispositive issue in this appeal -- namely, whether
Title IX permits a university to diminish athletic opportunities
available to men so as to bring them into line with the lower
athletic opportunities available to women. Every court, in
construing the Policy Interpretation and the text of Title IX,
has held that a university may bring itself into Title IX com-
pliance by increasing athletic opportunities for the underre-
presented gender (women in this case) or by decreasing
athletic opportunities for the overrepresented gender (men in
this case). See Horner, 43 F.3d at 275; Kelley v. Board of
Trustees, 35 F.3d 265, 269 (7th Cir. 1994); Roberts v. Colo-
rado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir. 1993)
("We recognize that in times of economic hardship, few
schools will be able to satisfy Title IX's effective accommo-
dation requirement by continuing to expand their women's
athletics programs. . . . Financially strapped institutions may
still comply with Title IX by cutting athletic programs such
that men's and women's athletic participation rates become
substantially proportionate to their representation in the
undergraduate population."); Cohen I, 991 F.2d at 898 n.15
("Title IX does not require that a school pour ever-increasing
sums into its athletic establishment. If a university prefers to
take another route, it can also bring itself into compliance
with the first benchmark of the accommodation test by sub-
traction and downgrading, that is, by reducing opportunities
for the overrepresented gender while keeping opportunities
stable for the underrepresented gender (or reducing them to a
much lesser extent)."). An extensive survey of Title IX's leg-
islative history and the regulations promulgated to apply its
provisions to college athletics concluded that boosters of male
sports argued vociferously before Congress that the proposed
regulations would require schools to shift resources from
men's programs to women's programs, but that Congress nev-
ertheless sided "with women's advocates" by deciding not to
repeal the HEW's athletics-related Title IX regulations. Mary
Jo Festle, Playing Nice: Politics and Apologies in Women's
Sports 171-76 (1996). Congress thus appears to have believed
that Title IX would result in funding reductions to male ath-
letic programs. If a university wishes to comply with Title IX
by leveling down programs instead of ratcheting them up, as
Appellant has done here, Title IX is not offended.

[4] There is a second reason why a reversal of the district
court's order granting injunctive relief on the Title IX claim
is warranted. The district court failed to defer properly to the
interpretation of Title IX put forward by the administrative
agency that is explicitly authorized to enforce its provisions.
It is well-established that the federal courts are to defer sub-
stantially to an agency's interpretation of its own regulations.
See Martin v. Occupational Safety & Health Review Comm'n,
499 U.S. 144, 150
  (1991). The Department of Education,
"acting through its OCR [is] the administrative agency
charged with administering Title IX." Cohen I, 991 F.2d at
895. In this instance, Congress explicitly delegated to the
agency the task of prescribing standards for athletic programs
under Title IX. See Pub. L. No. 93-380,S 844, 88 Stat. 612
(1974); Kelley, 35 F.3d at 269 n.3; Roberts, 998 F.2d at 828;
Cohen I, 991 F.2d at 895. Under Chevron, where Congress
has expressly delegated to an agency the power to "elucidate
a specific provision of the statute by regulation," that agen-
cy's regulations should be accorded "controlling weight
unless they are arbitrary, capricious, or manifestly contrary to
the statute." Chevron USA v. NRDC, 
467 U.S. 837
, 843-44
(1984).

[5] Appellees deem Chevron inapplicable on the ground
that OCR's interpretation violates the plain meaning of the
statute.6 Under their interpretation, Title IX bars universities
from disadvantaging any student athlete on the basis of his or
her gender. But the plain meaning of the nondiscrimination
principle set forth in 20 U.S.C. S 1681(a) does not bar reme-
dial actions designed to achieve substantial proportionality
between athletic rosters and student bodies. Indeed, Appel-
lees' interpretation of 20 U.S.C. S 1681(a)'s plain meaning
would render 1681(b) superfluous. After all, S 1681(b) states
that Title IX does not require

       any education institution to grant preferential or dis-
       parate treatment to the members of one sex on
       account of an imbalance which may exist with
       respect to the total number or percentage of persons
       of that sex participating in or receiving the benefits
       of any federally supported program or activity, in
       comparison with the total number or percentage of
       persons of that sex in any community . . . .7

If S 1681(a) already bars the type of remedial action that
Appellant engaged in pursuant to the consent decree, then
S 1681(b)'s provision that Title IX does not require such
remedial action would be mere surplusage. "Statutes must be
interpreted, if possible, to give each word some operative
effect." Walters v. Metropolitan Educ. Enters., Inc., 519 U.S.
202, 209 (1997).

Moreover, we deem it highly instructive that, at oral argu-
ment, Appellees conceded that their proposed interpretation of
Title IX, whereby a university could permissibly discriminate
on the basis of sex in order to ensure that each gender's inter-
ests in athletic participation were equally accommodated, is
just as contrary to 1681(a)'s purported plain meaning as the
interpretation advanced by the OCR and Appellants is.

[6] We also note that Appellees' interpretation of Title IX's
text has been rejected explicitly by the Seventh Circuit, see
Kelley, 35 F.3d at 270, as well as the OCR, and implicitly
rejected by the other circuits that have held that a school may
cut the number of male athletic slots in order to bring itself
into compliance with Title IX. See Horner, 43 F.3d at 275;
Roberts, 998 F.2d at 830; Cohen I, 991 F.2d at 898 n.15.
Under such circumstances, it is clear that OCR's interpreta-
tion of Title IX's athletics provisions merits deference under
Martin and Chevron. In Cohen II and Kelley the courts held
that 34 C.F.R. S 106.41 deserved controlling weight under
Chevron and that the OCR Policy Interpretation deserved sub-
stantial deference under Martin. See Cohen II, 101 F.3d at
173; Kelley, 35 F.3d at 270-71; see also Favia v. Indiana
Univ. of Penn., 812 F. Supp. 578, 584 (W.D. Pa.) (holding
that "OCR's policy interpretation deserves our great
deference" under Chevron), aff'd 7 F.3d 332 (3d Cir. 1993).
Similarly, in the case before us, the 1996 OCR Clarification
and the Cantu letter explaining it merit deference under
Martin. These clarifications essentially adopted the reasoning
of Cohen I as OCR policy. Under these clarifications' clear
wording, an institution in which male athletes are overrepre-
sented can bring itself into Title IX compliance by reducing
sufficiently the number of roster spots available to men.

Finally, the district court below rejected the interpretation
of Title IX advocated by the OCR and Appellants on the
ground that such a reading of the statute might violate the
Constitution. In the court's words, OCR's interpretation
would

       effectively transform Title IX from an anti-
       discrimination statute to a statute enacted to remedy
       past discrimination, thus subjecting it to heightened
       scrutiny. Without speculating whether Title IX
       would survive such searching constitutional scrutiny,
       the court notes that it remains unsatisfied with the
       Cohen majority's treatment of these important ques-
       tions. The court is satisfied that avoiding serious
       constitutional questions such as an equal protection
       challenge to a very important Congressional statute
       is itself ample reason for rejecting the safe harbor
       idea as part of Title IX.

The district court thus strained to interpret Title IX in a way
that ostensibly would avoid these concerns. In doing so, it fol-
lowed the interpretive methodology laid out by the Supreme
Court in NLRB v. Catholic Bishop of Chicago, 
440 U.S. 490

(1979). Chief Justice Burger, writing for the Catholic Bishop
majority, announced that the Court would decline to construe
an act of Congress "in a manner that could in turn call upon
the Court to resolve difficult and sensitive questions arising
out of the guarantees of the First Amendment Religious
Clauses." Id. at 507; see also Edward J. DeBartolo Corp. v.
Florida Gulf Coast Bldg. & Constr. Trades Council , 485 U.S.
568, 575 (1988) ("[W]here an otherwise acceptable construc-
tion of a statute would raise serious constitutional problems,
the Court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of
Congress."); William N. Eskridge, Jr. & Philip P. Frickey,
Legislation: Statutes and the Creation of Public Policy 675-
87 (2d ed. 1995) (discussing Catholic Bishop and the canon
of construing statutes so as to avoid constitutional problems).
Under Catholic Bishop, the inquiry properly raised on appeal
is not whether the OCR's interpretation of Title IX is uncon-
stitutional, but whether it "raises serious constitutional
questions." We answer that question in the negative.

The First and Seventh Circuits both have considered at
length the constitutionality of the first prong of the OCR's
test. In Cohen I, 991 F.2d at 899-901; Cohen II, 101 F.3d at
181-84; and Kelley, 35 F.3d at 272-73, the courts emphati-
cally rejected the claim that the Policy Interpretation was
unconstitutional under the Fourteenth Amendment. The sepa-
rate reasoning in the two Cohen opinions is particularly well-
developed. It applied intermediate scrutiny, which we would
also do were we addressing the constitutional merits. See
Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 702 (9th
Cir. 1997) ("When the government classifies by gender, it
must demonstrate that the classification is substantially
related to an important governmental interest, requiring an
`exceedingly persuasive' justification."). Cohen II noted that
the Policy Interpretation furthered the "clearly important"
objectives of "avoid[ing] the use of federal resources to sup-
port discriminatory practices, and provid[ing ] individual citi-
zens effective protection against those practices. " 101 F.3d at
184 (citation and internal quotations omitted). Moreover, it
found that "judicial enforcement of federal anti-discrimination
statutes is at least an important governmental objective." Id.
And Cohen II held that the district court's relief, which was
essentially identical to what the OCR Policy Interpretation
calls for, was "clearly substantially related" to these objec-
tives. Id. Along the same lines, the Seventh Circuit has held
that "the remedial scheme established by Title IX and the
applicable regulation and policy interpretation are clearly sub-
stantially related to" the objective of prohibiting "educational
institutions from discriminating on the basis of sex." Kelley,
35 F.3d at 272. We adopt the reasoning of Cohen I, Cohen II,
and Kelley, and hold that the constitutional analysis contained
therein persuasively disposes of any serious constitutional
concerns that might be raised in relation to the OCR Policy
Interpretation.8 The district court's final basis for rejecting the
OCR's interpretation of Title IX was therefore erroneous.

IV.

This past summer, 90,185 enthusiastic fans crowded into
Pasadena's historic Rose Bowl for the finals of the Women's
World Cup soccer match. An estimated 40 million television
viewers also tuned in to watch a thrilling battle between the
American and Chinese teams. The match ended when Ameri-
can defender Brandi Chastain fired the ball past Chinese goal-
keeper Gao Hong, breaking a 4-4 shootout tie. See Grant
Wahl, Out of this World with the Cup on the Line, A Last-
Second Hunch and a Clutch Left Foot Lifted the U.S. to a
Breathtaking Victory over China, Sports Illustrated, July 19,
1999, at 38. The victory sparked a national celebration and a
realization by many that women's sports could be just as
exciting, competitive, and lucrative as men's sports. And the
victorious athletes understood as well as anyone the connec-
tion between a 27-year-old statute and tangible progress in
women's athletics. See Scott M. Reid, Title IX Scores Big for
U.S. Soccer, Orange County Reg., July 6, 1999, at D1 (quot-
ing Chastain's statement that "all of this is because of Title
IX"); Patrick Hruby, On Top of the World Scurry Saves Day,
Chastain Wins It for U.S., Wash. Times, July 11, 1999, at A1
(quoting defender Kate Sobrero's statement that "we're all
Title IX babies, and this shows it's working"). Title IX has
enhanced, and will continue to enhance, women's opportuni-
ties to enjoy the thrill of victory, the agony of defeat, and the
many tangible benefits that flow from just being given a
chance to participate in intercollegiate athletics. Today we
join our sister circuits in holding that Title IX does not bar
universities from taking steps to ensure that women are
approximately as well represented in sports programs as they
are in student bodies. We REVERSE, and VACATE the pre-
liminary injunction.
_______________________________________________________________

FOOTNOTES

1 This figure assumed 60% female enrollment for that year.
2 The First Circuit numbers the Cohen decisions differently. Because we
discuss only two opinions, we refer to them as Cohen I and Cohen II.
3 The OCR later was authorized by Congress to issue Title IX's regula-
tions with respect to athletic opportunities. See Pub. L. No. 93-380, 88
Stat. 612 (1974).
4 That is, the creation of additional athletic spots for women would
prompt universities to recruit more female athletes, in the long run shifting
women's demand curve for sports participation. As more women partici-
pated, social norms discouraging women's participation in sports presum-
ably would be further eroded, prompting additional increases in women's
participation levels. Cf. Note, Cheering on Women and Girls in Sports:
Using Title IX to Fight Gender Role Oppression, 110 Harv. L. Rev. 1627,
1640 (1997) ("In effect, the `substantially proportionate' approach recog-
nizes that women's attitudes toward sports are socially constructed and
have been limited by discrimination and gender stereotypes. Congress
passed Title IX to combat such discrimination and stereotypes, thereby
changing the social environment in which girls and women develop, or do
not develop, interests in sports.").
5 We also view as instructive this Court's precedent in Jeldness v.
Pearce, 30 F.3d 1220 (9th Cir. 1994). That case involved a Title IX suit
brought by female prisoners that challenged the lack of vocational educa-
tional programs in women's facilities relative to those available in men's
facilities. Although the regulations at issue in Jeldness are different from
those at issue here, the prison context is somewhat analogous because, as
with college athletic teams, "sex segregation is the accepted norm" in pris-
ons. Id. at 1228. In Jeldness, we rejected the view that differing interest
levels among the genders would justify providing women with signifi-
cantly fewer educational opportunities than men. See id. at 1229.
6 20 U.S.C. S 1681(a) reads:

       No person in the United States shall, on the basis of sex, be
       excluded from participation in, be denied the benefits of, or be
       subjected to discrimination under any education program or
       activity receiving Federal financial assistance . . . .
7 Because the OCR's three-part test gives universities two avenues other
than substantial proportionality for bringing themselves into Title IX com-
pliance, it does not conflict with S 1681(b).
8 The amicus brief filed by USA Wrestling and a number of other orga-
nizations repeatedly invokes the Adarand line of cases and Title VII pre-
cedents to suggest that the scope of remedial action to correct for
disparities among groups is quite limited. Those precedents are not rele-
vant in the context of collegiate athletics. Unlike most employment set-
tings, athletic teams are gender segregated, and universities must decide
beforehand how many athletic opportunities they will allocate to each sex.
As a result, determining whether discrimination exists in athletic programs
requires gender-conscious, group-wide comparisons. Because men are not
`qualified' for women's teams (and vice versa), athletics require a gender
conscious allocation of opportunities in the first instance. The paradigm
that has motivated the Supreme Court's more recent reverse-
discrimination jurisprudence simply does not fit the case at bar. See Cohen
II, 101 F.3d at 181 ("[W]hile Adarand does make new law, the law it
makes is wholly irrelevant to the disposition of this appeal . . . .").