National Collegiate Athletic Association

The NCAA News - News and Features

March 3, 1997

Brown appeals to Supreme Court

University asks highest court to overturn Title IX ruling

Claiming that a resolution of its Title IX discrimination case is important to higher education institutions across the nation, Brown University has filed a final appeal with the U.S. Supreme Court.

Filing late February 18 just before the appeal deadline, Brown's attorney noted the broad interest in the ruling.

"This case does not concern the Title IX problems of one university in Rhode Island," wrote Maureen E. Mahoney, counsel of record, in the Supreme Court petition for a writ of certiorari. "The issues here have wide-ranging impact on countless colleges across America."

Brown said it is asking for a speedy hearing of the case so that a final determination can be made on the issues and so that all colleges can frame their athletics programs accordingly.

"Virtually every institution in the country must now do what Brown has been ordered to do: find the funds necessary to continue expanding women's teams, or eliminate opportunities for men," Brown argued in its brief. "Failure to restructure athletics programs in an effort to achieve gender parity exposes virtually all academic institutions to expensive litigation, liability and the loss of federal funding.

"Universities that dismantle men's athletics programs to comply with the standards at issue cannot simply turn back the clock when those standards are later found to conflict with Title IX. It takes years to build a successful program, and those programs should not be sacrificed to the impermissible affirmative-action mandate of the lower courts."

Lynette Labinger, attorney for the women who sued the institution, dismissed Brown's claims and said that it and other schools are interested in maintaining a system that favors men.

"There is only one principle (Brown has) espoused, which is that men should get more opportunities to participate because they supposedly are more interested in athletics and deserve a bigger piece of the pie," Labinger said.

Brown alleged that rulings by the district court and the appeals court in its case conflicted with established Supreme Court precedents when they held that the percentage of female athletes must be the same as that of female enrollment. The university has argued that the participation need only be proportionate to the interest.

Mahoney contended in Brown's brief that the First Circuit "committed virtually every error that this Court has warned against" when interpreting statutes such as Title IX.

"In Title IX, Congress directed universities receiving federal funds to eliminate 'discrimination' in their programs, but it did not direct them to achieve gender balance in those programs, or to ensure that interested women would have a greater chance of participating in athletics than interested men," Brown's brief stated.

Brown also noted the dissenting opinion of appeals court Chief Judge Juan R. Torruella, in which he said the lower court's ruling effectively turned Title IX into an affirmative-action measure, requiring a gender-conscious remedial action that Title IX expressly forbids.

The Education Amendments of 1972 (more commonly known as Title IX) prohibit discrimination on the basis of sex at educational institutions that receive federal funds.

Major impact

Brown contends that the case will have a major impact on athletics programs everywhere.

"The use of Title IX to mandate adherence to preferential quotas presents an issue of exceptional importance that warrants resolution now," the brief stated. "Most of the varsity athletics programs in the country must be dramatically altered to increase the percentage of women in order to comply with the standard at issue here. Universities with budgetary constraints must cut academic offerings to fund additional teams for women, cut teams for men, or risk liability for damages and loss of federal funds.

"In light of the uniform position of the (circuit courts) and federal agency responsible for enforcement, intervention by this court is needed to prevent compulsory displacement of nondiscriminatory programs that offer equal opportunity to all students with preferential programs that guarantee 'gender parity.' "

In announcing the appeal, Laura Freid, executive vice-president for university relations at Brown, said "Brown's record of leadership in women's athletics has never been an issue in this case. Brown has demonstrated a historical commitment that predates Title IX and continues to set the standard for the nation's colleges and universities.

"We are confident that our athletics programs are administered fairly, even-handedly and in full compliance with both the spirit and the letter of Title IX."

The Brown case has been winding its way through the courts since 1992, when members of Brown's women's volleyball and gymnastics teams filed suit alleging gender discrimination in violation of Title IX. Its progress has been followed by universities and colleges across the country as they work to open opportunities for female athletes and avoid litigation.

The Brown suit was the result of a cutback in May 1991 in which Brown changed the funding status of four varsity teams, requiring them to raise their own operating funds. Men's golf, men's water polo, women's volleyball and women's gymnastics were affected by the decision.

The case now presented to the Supreme Court -- Cohen v. Brown -- is named for Amy Cohen, a former gymnast and plaintiff in the case. The women athletes asked that funding for the teams be reinstated and claimed discrimination in the athletics opportunities available to female students at Brown.

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 -- that women are not as interested in sports participation as men at Brown.

District court ruling

A trial in U.S. District Court in Providence, Rhode Island, in 1994 resulted in a finding that Brown had discriminated. Brown appealed that decision to the U.S. Court of Appeals for the First Circuit.

On November 21, 1996, the appeals court upheld the district court decision in a 2-1 opinion. Brown then had 90 days to accept the findings of the appeals court or appeal to the Supreme Court.

The appeals court decision was hailed by supporters of women's athletics who saw it as a strengthening of Title IX and a "wake-up call" to universities to get their athletics programs into compliance by broadening athletics opportunities for women.

In that vein, Labinger is critical of Brown's decision to appeal.

"Brown seeks to establish a principle to roll back and deny opportunities to women," she said noting that at least six Circuit Courts of Appeals have ruled similarly in athlete discrimination cases. She also observed that the Supreme Court has refused to hear Title IX appeals brought by Colorado State University and the University of Illinois, Champaign.

Meanwhile, Brown continues to claim that a disparity exists in the interest of men and women in sports participation.

"Women's participation in athletics has increased dramatically without the First Circuit's rule, and the fact that women are not equally interested in devoting their time and energies to collegiate athletics may be the product of legitimate choice instead of discriminatory barriers," the brief stated.

"Just as there is no reason to presume that men would enroll in collegiate dance programs in equal numbers to women in the absence of discriminatory barriers, there is no reason to presume an equal interest in athletics when the evidence shows otherwise. Title IX was designed to guarantee equal opportunity -- not equal participation."

The appeals court, in the majority opinion, addressed Brown's argument that women have less interest in sports participation. "Interest and ability rarely develop in a vacuum," the finding stated. "They evolve as a function of opportunity and experience. The (Office for Civil Rights') Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports."

The district court ruled in March 1995 that Brown failed to meet any part of OCR's three-part compliance test, making it in violation of Title IX. It ordered the school to develop a plan to bring its athletics program into compliance and later rejected Brown's proposal to set maximum limits for men's teams and to establish four women's junior varsity teams that would be university-funded, or to reduce men's programs.

The district court then ordered Brown to upgrade four women's teams to fully funded varsity status. The appeals court said Brown should instead have an opportunity to develop another plan for complying, even if it involved reducing opportunities for male athletes.