The NCAA News - News and Features

April 28, 1997

Supreme Court denies Brown appeal

The U.S. Supreme Court has refused to hear the appeal of a prominent Title IX case involving Brown University, possibly putting an end to the current wave of litigation involving the federal antidiscrimination law.

Without comment, the court announced April 21 that it would not hear the appeal, which most observers regarded as the pre-eminent case involving Title IX.

The case, Cohen v. Brown, was especially notable because it involved a university that has a large, viable and -- in the view of some observers -- equitable women's athletics program. However, a U.S. district court found in March 1995 that the university did not meet any part of the three-part Title IX compliance test prescribed by the Office for Civil Rights and was therefore in violation of the law. The district court decision was upheld last November by the 1st U.S. Circuit Court of Appeals.

The case began in 1991 when the university imposed budget cuts on the athletics program. At the time, Brown sponsored 16 men's sports and 16 women's sports. It chose to eliminate funding for men's golf and water polo and for women's gymnastics and volleyball.

Women athletes who were affected by the elimination of gymnastics and volleyball sued, claiming that the decision to eliminate the women's sports violated Title IX.

The university clearly did not meet the first part of OCR's three-part test -- athletics participation that is proportional to the overall undergraduate enrollment -- but it claimed that it did meet parts two and three (historical expansion and accommodation of the interests and abilities of the underrepresented sex).

However, the courts found that Brown had not expanded its women's sports program in recent years (thus failing to meet part two) and that it was failing to accommodate demonstrated interest in the affected sports and possibly others (thus not meeting the part three standard).

Deborah L. Brake, senior counsel for the National Women's Law Center and a member of the legal team that represented the women athletes before the appeals court, said the Supreme Court's refusal to hear the case effectively ends the lawsuit.

"Now that the Supreme Court has rejected Brown's challenge, I think it's very unlikely that another circuit will split off," Brake said. "It is extremely unlikely that the court will ever hear a case challenging the three-part test because there is no confusion about the law.

"It's time for institutions to stop fighting it (Title IX) and start complying with it."

Brake, speaking to a session on Title IX case law April 21 at the 1997 NCAA Title IX seminar in Atlanta, said Brown filed the appeal to the Supreme Court to clarify what it claimed was a confusion in the circuit courts about the validity of Title IX's three-part test.

"They wanted to clear up a split in the circuits, but there isn't one," she said. "Five circuits reached the same conclusion."

"The issues in Brown are settled," said Mary Ann Connell, general counsel for the University of Mississippi, who also was in Atlanta to address the Title IX seminar. "There are many people who will not be at peace about this because the Supreme Court didn't take the case. But the Supreme Court refused it because everything has been said."

Connell said universities and colleges should comply with the law and stop looking for ways to avoid it.

"It's time to move on," she said. "If you don't move on, you're going to be looking at large legal dollars. I love the law, but it is stupid to pay lawyers a million dollars when you can take that money and do a lot of things.

"Let's not fight this battle any longer. That is the message you need to take back to your campuses."

Brown plan

With the legal issues settled, Brake said she hoped Brown would choose to reallocate resources to enhance women's programs rather than cut men's programs.

Indeed, in a document filed in a U.S. district court April 21, Brown described a plan designed to adjust the ratio of women to men among its varsity athletes to reflect the overall undergraduate enrollment.

Brown's plan calls for expanding women's opportunities within the existing program (but without adding teams in sports not currently offered), establishing and enforcing minimum roster sizes for all teams, establishing and enforcing firm limits on the roster sizes of all men's teams, and using a formula for determining the target number of male athletes that would result in an absolute mirroring of the undergraduate enrollment (rather than substantial mirroring).

"Brown offers one of the widest arrays of varsity teams in the nation -- 17 women's teams, 16 men's teams and two coed teams," said Laura Freid, Brown executive vice-president for external affairs. "Neither our main athletics facilities nor the university's budget can support additional teams in the few sports we do not already offer.

"We expect our compliance plan to bring the gender ratio among athletes within one percent of the overall undergraduate ratio. That should certainly meet the court's substantial mirroring goal. It is the best the university can do without eliminating a men's varsity team."

Congressional interest

The Supreme Court's decision not to hear the case could shift the entire issue back to Congress, which ultimately has the authority to change the law.

Representatives of several men's nonrevenue sports, especially wrestling, have claimed that the law is not necessarily expanding women's opportunities but rather is diminishing men's opportunities in sports that are being cut to achieve Title IX compliance. A coalition representing men's nonrevenue sports was able to bring about a Congressional hearing on the application of Title IX law in May 1995. The eventual outcome was a clarification of the three-part test provided in January 1996 by OCR director Norma V. Cantu.

In addition, Grant Teaff, executive director of the American Football Coaches Association, has not given up on judicial options. He cited a U.S. district court decision in Louisiana in which the trial judge expressed reservations about the proportionality standard.

"We're disappointed that the Supreme Court did not elect to hear this case," Teaff said. "Brown University was supported by an assortment of diverse groups in education and several national associations, and I felt the Court would take it."