at II-2. Nor does the second prong of the test change the analysis. The district court also summarized the history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams were established before 1927, virtually all of the women's varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. Our discussion in Cohen II also cited Califano v. Webster, 430 U.S. 313, 97 S.Ct. As applied in the federal courts today, the law of the case doctrine more closely resembles the doctrine of stare decisis. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. There is little more than that, because Congress adopted Title IX as a floor amendment without committee hearings or reports. In Cohen II, we applied precisely this type of benign-classification analysis to what we viewed to be benign gender discrimination by the federal government. Even under the individual rights theory of equal protection, reaffirmed in Adarand, 515 U.S. at ----, 115 S.Ct. He was elected in 2014 as a Judge of the Civil Court, NY County, and has also served, by designation . We have also recognized that this exception may apply in those rare situations where newly emergent authority, although not directly controlling, nevertheless offers a convincing reason for believing that the earlier panel, in light of the neoteric developments, would change its course. Id. We have narrowly confined the intervening controlling authority exception to Supreme Court opinions, en banc opinions of this court, or statutory overrulings. Inc. v. Pena, 515 U.S. 200, ----, 115 S.Ct. At the preliminary injunction stage, Brown propounded the same relative interests argument under prong three. The court found, however, that it is difficult for donor-funded varsity athletes to maintain a level of competitiveness commensurate with their abilities and that these athletes operate at a competitive disadvantage in comparison to university-funded varsity athletes. Prong three of the three-prong test states that, where an institution does not comply with prongs one or two, compliance will be assessed on the basis of. By the 1993-94 year, there were 12 university-funded men's teams and 13 university funded women's teams. By Arthur Bryant and Lori Bullock* Cohen v. Brown University, which the First Circuit just referred to as "This landmark Title IX case," started in April 1992, after the school stopped funding its varsity women's gymnastics and volleyball teams.Eleven female athletes, including Amy Cohen, Megan Hull, Lisa Stern Kaplowitz, Eileen Rocchio, and Jennifer Todd, fought back. The relevant facts, legal principles, and procedural history of this case have been set forth in exhaustive detail in the previous opinions issued in this case. A panel of this court affirmed the district court's decision granting a preliminary injunction to the plaintiffs. . Cohen v. Brown University. 706, 102 L.Ed.2d 854, the Court applied strict scrutiny in striking down a municipal minority set-aside program for city construction contracts. We reject Brown's kitchen-sink characterization of the Policy Interpretation and its challenge to the substantial deference accorded that document by the district court. The test is also entirely consistent with 1681(b) as applied by the prior panel and by the district court. To the extent that the rate of interest in athletics diverges between men and women at any institution, the district court's interpretation would require that such an institution treat an individual male student's athletic interest and an individual female student's athletic interest completely differently: one student's reasonable interest would have to be met, by law, while meeting the other student's interest would only aggravate the lack of proportionality giving rise to the legal duty. Cohen II, 991 F.2d at 902 (a party losing the battle on likelihood of success may nonetheless win the war at a succeeding trial). Rather than turning that ruling into a permanent one, we should review the question in light of the full set of facts now available. Although Metro Broadcasting explicitly discussed race-conscious rather than gender-conscious classifications, we applied its standard in Cohen II. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. The court noted further that, because merely reducing program offerings to the overrepresented gender does not constitute program expansion for the underrepresented gender, the fact that Brown has eliminated or demoted several men's teams does not amount to a continuing practice of program expansion for women. In Fullilove, a plurality of the Court applied a standard subsequently acknowledged to be intermediate scrutiny, see Metro Broadcasting, 497 U.S. at 564, 110 S.Ct. The figures in question demonstrate that women's participation in athletics is less than proportional to their enrollment. 39,261-62 (1971) (remarks of Rep. Quie); 117 Cong.Rec. 1171, 1175-76, 113 L.Ed.2d 117 (1991) (quoting Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 19 (2022), the Massachusetts Supreme Judicial . We therefore affirm in all respects the district court's analysis and rulings on the issue of liability. v. Bell, 456 U.S. 512, 523 n. 13, 102 S.Ct. denied, 513 U.S. 1128, 115 S.Ct. Under these circumstances, the district court's finding that there are interested women able to compete at the university-funded varsity level, Cohen III, 879 F.Supp. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. Id. The law of the case doctrine is a prudential rule of policy and practice, rather than an absolute bar to reconsideration [] or a limitation on a federal court's power. Rivera-Martinez, 931 F.2d at 150-51. ; see also United States v. Reveron Martinez, 836 F.2d 684, 687 n. 2 (1st Cir.1988) (To be sure, there may be occasions when courts can-and should-loosen the iron grip of stare decisis. at 19-20. Co., 41 F.3d at 770 (citing 1B Moore at 0.404[10]). 978 (D.R.I. [W]hereas Title VII is largely peremptory, Title IX is largely aspirational, and thus, a loosely laced buskin. Id. This standard, in fact, goes farther than the straightforward quota test of prong one. 1910, 1914, 100 L.Ed.2d 465 (1988); see also Mississippi Univ. 1681(a) (West 1990). Serv. 8. 1 On January 17, 2021, the Amendment to the Joint Agreement was appealed by Plaintiff Class Member Objectors. Finding that Brown's proposed compliance plan was not comprehensive and that it failed to comply with the opinion and order of Cohen III, the district court rejected the plan and ordered in its place specific relief consistent with Brown's stated objectives in formulating the plan. Id. We reject both premises.17 Brown's implicit reliance on Adarand as contrary intervening controlling authority that warrants a departure from the law of the case doctrine is misplaced because, while Adarand does make new law, the law it makes is wholly irrelevant to the disposition of this appeal, and, even if Adarand did apply, it does not mandate the level of scrutiny to be applied to gender-conscious government action. (Cohen v. Brown University, (1st Cir. Put another way, I agree that Title IX is not an affirmative action statute, id., but I believe that is exactly what the district court has made of it. Id. Brown's rehashed statutory challenge is foreclosed by the law of the case doctrine and we are therefore bound by the prior panel's interpretation of the statute, the regulation, and the relevant agency pronouncements. Applying these principles, Cohen II held that the applicable regulation, 34 C.F.R. 2264, 135 L.Ed.2d 735 (1996), the Court faced an Equal Protection challenge to Virginia's practice of maintaining the Virginia Military Institute as an all male institution. Additionally, section 1681(a), a provision enacted by Congress as part of Title IX itself, casts doubt on the district court's reading of prong three. Amy COHEN, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellants. Trial on the merits has served to focus these questions and to provide background that allows us to consider these questions in the proper context and in detail. Ronald D. Rotunda & John E. Nowak, 3 Treatise on Constitutional Law 18.2, at 7-8 (2d ed. The district court did not find that full and effective accommodation of the athletics interests and abilities of Brown's female students would disadvantage Brown's male students. Brown concedes that Adarand does not, in partially overruling Metro Broadcasting, set forth the proper standard of review for this case. Appellant's Br. The district court's narrow, literal interpretation should be rejected because prong three cannot be read in isolation. at 71,418, in which case the compliance inquiry ends without reaching prong three. 1 " Specifically, the plaintiff class, which consists of all present and future Brown University women students and . Majority Opinion at 163. In concluding that the district court's interpretation and application of the three-part test creates a quota, Brown errs, in part, because it fails to recognize that (i) the substantial proportionality test of prong one is only the starting point, and not the conclusion, of the analysis; and (ii) prong three is not implicated unless a gender-based disparity with respect to athletics participation opportunities has been shown to exist. In Cohen v. Brown University, plaintiff Amy Cohen challenges the elimination of women's gymnastics and volleyball teams. Instead, the law requires that, absent a demonstration of continuing program expansion for the underrepresented gender under prong two of the three-part test, an institution must either provide athletics opportunities in proportion to the gender composition of the student body so as to satisfy prong one, or fully accommodate the interests and abilities of athletes of the underrepresented gender under prong three. 20 U.S.C.A. [24] This provision governs the distribution of athletic scholarships under the general caption of financial assistance in education programs. 44 Fed.Reg. EPA questioned the petitioners' standing to invoke the court's jurisdiction under Article III. 1053, 94 L.Ed.2d 203 (1987) (upholding a one-black-for-one-white promotion requirement ordered by a district court as an interim measure in response to proven discrimination by a state employer); Local 28 ofSheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct. at 2112 (the equal protection guarantee protect[s] persons, not groups), the only way to determine whether the rights of an individual athlete have been violated and what relief is necessary to remedy the violation is to engage in an explicitly gender-conscious comparison. Junior varsity squads, by definition, do not meet this criterion. The Policy Interpretation represents the responsible agency's interpretation of the intercollegiate athletics provisions of Title IX and its implementing regulations. As a consequence of these demotions, all four teams lost, not only their university funding, but most of the support and privileges that accompany university-funded varsity status at Brown. at 71,415. Brown's proposed compliance plan stated its goal as follows: The plan has one goal: to make the gender ratio among University-funded teams at Brown substantially proportionate to the gender ratio of the undergraduate student body. The Bond InjunctionSchooner Lost. ), cert. Metro Broadcasting, and our application of its intermediate scrutiny standard in Cohen II, omitted the additional skeptical scrutiny requirement of an exceedingly persuasive justification for gender-based government action. at 3336 & n. 9 (reviewing benign gender-conscious admissions policy under intermediate scrutiny and recognizing that the analysis does not change with the objective of the classification); accord Wygant, 476 U.S. at 273, 106 S.Ct. 770 ( citing 1B Moore at 0.404 [ 10 ] ) more closely resembles doctrine., do not meet this criterion which case the compliance inquiry ends without reaching prong three preliminary! Overruling Metro Broadcasting explicitly discussed race-conscious rather than gender-conscious classifications, we applied its standard in II! In 2014 as a floor amendment without committee hearings or reports gymnastics and teams. Stage, Brown propounded the same relative interests argument under prong three adopted Title IX as a of! 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