The NCAA News - News Features

Brown Title IX decision upheld on appeal

BY SALLY HUGGINS
Staff Writer

An appellate court's November 21 affirmation of a U.S. District Court decision that Brown University discriminated against women in demoting two women's sports is being heralded by the prevailing side as a wake-up call to intercollegiate athletics.

"We think this decision is a slam dunk for Title IX," said Deborah L. Brake, senior counsel for the National Women's Law Center. "The court flatly rejected Brown's argument."

In a 2-1 decision, the U.S. Court of Appeals for the First Circuit in Boston upheld the district court's decision last year that Brown violated Title IX when it dropped women's gymnastics and volleyball from university-funded varsity status to donor-funded varsity status in May 1991.

"What's notable here is more what didn't happen," said Arthur H. Bryant, executive director of the Trial Lawyers for Public Justice and cocounsel in the case. "Brown was looking for a decision effectively gutting Title IX and they didn't get it."

The appeals court decision has been awaited with interest in intercollegiate athletics because of the implications for how the Education Amendments of 1972 (more commonly known as Title IX) will be enforced by the U.S. Office for Civil Rights. Title IX prohibits discrimination on the basis of sex at educational institutions that receive federal funds.

Brown has not decided whether to appeal the appeals court decision, said Mark Nickel, a spokesman for the university and director of the Brown News Bureau.

"We're still deciding among a number of options," he said. "Among the options are to petition the Supreme Court or to petition to the First Circuit for a reconsideration. There is a 14-day window to petition the First Circuit and a 90-day window to appeal to the Supreme Court. Our attorneys are reviewing the options.

"In the past, Brown has said it would continue its appeal, but we are reviewing that."

Court finds argument 'suspicious'

Brown has contended that a significant disparity in athletics opportunities for men and women at the school is the result of a gender-based disparity in the level of interest. In other words, the school contends that women at Brown were not as interested in sports participation as men. In the 1990-91 academic year, enrollment at Brown was 49 percent male and 51 percent female. Athletics participation that year was 63 percent male and 37 percent female.

In its decision, the appeals court noted that "we view Brown's argument that women are less interested than men in participating in intercollegiate athletics, as well as its conclusion that institutions should be required to accommodate the interests and abilities of its female students only to the extent that it accommodates the interests and abilities of its male students, with great suspicion.

"To assert that Title IX permits institutions to provide fewer athletics participation opportunities for women than for men, based upon the premise 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 interest and abilities.

"Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. The Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports."

Under Title IX, a school must meet one of three criteria (often called prongs) to be in compliance with the regulation. The school must provide participation opportunities proportionate to enrollment; demonstrate a history and continuing practice of program expansion for the underrepresented sex; or fully and effectively accommodate the interests and abilities of the underrepresented sex.

The district court ruled that the university did not meet prong one because its participation numbers did not match its enrollment numbers. The court said Brown did not meet prong two because it had demoted two women's programs rather than expand participation opportunities. And because the demoted programs had been operating with full participation, the university was no longer meeting the interests and abilities of the women students as required in prong three.

Brake said the appellate court's ruling eliminates universities' justification for putting off compliance with Title IX.

"There are no excuses anymore," said Brake, who participated in the appeal on behalf of the Brown women athletes. "The court's decision doesn't add to the legal clarity. It's more of a wake-up call that it is time to comply with Title IX."

The Trial Lawyers for Public Justice, a public-interest law firm that sponsored the case on behalf of the women athletes at Brown, called on the school to end the case and direct its energy toward complying with the court's order.

"From day one we asked them not to fight," Bryant said. "We told them it would cost them way more to litigate this and they went ahead. Our attorneys' costs are over $1 million and theirs probably are over that, too."

The case was filed in April 1992 and an injunction requiring Brown to reinstate the women's teams was granted in December 1992.

More flexibility

If Brown chooses not to appeal and instead proceeds to develop a plan to bring the school into compliance with Title IX, the appellate court decision gives Brown more flexibility than the district court did in how it will accomplish that.

When the lower court ruled that Brown was in violation of Title IX in March 1995, it ordered the school to propose a plan for compliance. Brown submitted a proposal to set maximum limits for men's teams and establish four women's junior varsity teams that would be university-funded. The university added that if the court did not believe the plan adequately would achieve proportionality, Brown would eliminate one or more men's teams.

The lower court rejected the plan, noting that junior varsity squads did not qualify as intercollegiate competition opportunities under Title IX. The district court ordered Brown to upgrade four women's teams -- gymnastics, fencing, water polo and skiing -- to fully funded varsity status.

But the appellate court's opinion said Brown should have an opportunity to submit another plan for complying with Title IX.

"We agree with the district court that Brown's proposed plan fell short of a good-faith effort to meet the requirements of Title IX as explicated by this court....It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute," the opinion states.

Concern has been expressed by representatives of men's sports that opportunities for male athletes will be lost in bringing schools into compliance with Title IX.

Bryant said that Brown could have achieved compliance by adding 42 opportunities for women -- or by eliminating 215 opportunities for men.

"Brown has tried to paint this as if Title IX was forcing it to cut men's sports," he said. "In this decision, the court has said that is not true. It is Brown's decision how it will comply."

Dissenting opinion

In a dissenting opinion, First Circuit Chief Judge Juan R. Torruella wrote that the appellate court should have reconsidered the lower court's ruling because of recent decisions by the U.S. Supreme Court that require stricter scrutiny before a gender-based remedy can be imposed.

"The majority has put the power to control athletics and the provision of athletics resources in the hands of the underrepresented gender," Torruella wrote. "Virtually every other aspect of college life is entrusted to the institution, but athletics has now been carved out as an exception and the university no longer is in full control of its program.

"Unless the two genders participate equally in athletics, members of the underrepresented sex would have the ability to demand a varsity level team at any time if they can show sufficient interest. Apparently no weight is given to the sustainability of the interest, the cost of the sport, the university's view on the desirability of the sport, and so on."

The dissent also states that the majority opinion infringes on Brown's "freedom to craft its own athletics program and to choose the priorities of that program. Instead, they have established a legal rule that straitjackets college athletics programs by curtailing their freedom to choose the sports they offer."

But the majority opinion, in its conclusion, emphasized the significant role Title IX has played in expanding opportunities for women.

"One need look no further than the impressive performances of our country's women athletes in the 1996 Olympic Summer Games to see that Title IX has had a dramatic and positive impact on the capabilities of our women athletes, particularly in team sports," the opinion stated.

"These Olympians represent the first full generation of women to grow up under the aegis of Title IX. The unprecedented success of these athletes is due, in no small measure, to Title IX's beneficent effects on women's sports, as the athletes themselves have acknowledged time and again.

"What stimulated this change in the quality of women's athletics competition was not a sudden, anomalous upsurge in women's interest in sports, but the enforcement of Title IX's mandate of gender equity in sports."