The NCAA News - News and Features

May 5, 1997

Brown friends-of-court sought clarification of Title IX

BY SALLY HUGGINS
Staff Writer

Organizations and institutions that submitted friend-of-the-court briefs on behalf of Brown University in the university's appeal of its Title IX case to the Supreme Court expressed disappointment in the court's refusal April 21 to hear the appeal.

But all of the groups noted that their support of the appeal was an attempt to get a hearing on the three-part test for complying with Title IX -- not an indication that they do not support the concept of Title IX.

"It is very important not to blur the prohibition against sex discrimination and the principles of Title IX, which the institutions very strongly support," said Martin Michaelson, an attorney who prepared the amicus curiae brief for five higher education associations.

It is the administrative implementation of the law -- written to prohibit discrimination in athletics programs that receive federal funds -- that troubles the institutions, Michaelson said.

United States Water Polo, USA Wrestling and United States Swimming concurred that their interest in joining Brown in its appeal was to get clarification of the law and not to oppose Title IX.

But clarification was not forthcoming, as the Supreme Court declined without comment to hear the appeal.

Nine friend-of-the-court briefs supporting Brown's position were filed with the Supreme Court, representing views ranging from those of 49 members of Congress to a former cabinet secretary to the national educational associations and athletics and coaching organizations.

Brown asked the Supreme Court for a hearing of the case so that a final determination could be made on the issues and so that all colleges could frame their athletics programs accordingly. University attorneys alleged that all colleges would be exposed to litigation and liability if they reduced men's athletics programs to comply with Title IX guidelines.

"It's a very unfortunate development that the Supreme Court didn't take this case because the so-called three-part test is not a sound analysis of the issues Title IX presents," said Michaelson, who prepared the brief for the American Council on Education, American Association of State Colleges and Universities, Association of American Universities, National Association of Independent Colleges and Universities, and National Association of State Universities and Land-Grant Colleges.

Sports organizations supporting Brown's appeal expressed concern that proportionality clause in the Title IX compliance test would continue to be used as a reason for eliminating men's programs.

"We are supporters of equity, but we are concerned that we will see men's programs dropped under the guise of equity, when in reality it is budget constraints," said Ray B. Essick, executive director of US Swimming.

Bruce Wigo, executive director of US Water Polo, agreed.

"Our opinion was not whether Brown was right or wrong, but we wanted to get a hearing of the intention of Title IX. That still has not been accomplished," Wigo said. "The intent of Title IX was never to cut men's programs to bring in women's programs. This was an unintended consequence of Title IX."

Case began in 1991

Brown's journey through the courts began in 1991 after it 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. Members of the two women's teams filed suit against the university alleging gender discrimination in violation of Title IX.

Interestingly, Wigo noted, men's water polo was able to maintain its program at Brown by becoming fully self-funded.

Charles M. Neinas, executive director of the College Football Association, which also submitted an amicus brief on behalf of Brown, said the presence of the higher education associations was an indication of the concern even at the top levels of college administration about the implementation of Title IX.

"This indicates that concern over proportionality and Title IX encompasses more than those involved in coaching and administration and has created concern among presidents and chancellors," Neinas said.

The American Football Coaches Association also wanted a hearing of the Title IX three-part test, although the association was not a party to the appeal. Grant Teaff, AFCA executive director, said the AFCA did not submit an amicus brief because the association felt other organizations that carried more weight were in a better position to lend force to the fight.

"It was disappointing from our standpoint because everyone would like to have something settled on proportionality and this was a way to get that done," Teaff said. "Proportionality was not a part of the original Title IX issue. It has come about as a way to solve some things. And it has created some problems itself. Our thought was, let's get a ruling on this from the Supreme Court."

Schools preparing to comply

Because U.S. circuit courts that have looked at the three-part test have endorsed it -- and because it now appears the Supreme Court has done so as well -- schools are preparing to abide by the test as it currently stands, Michaelson said. A similar case is not likely to be taken by the Supreme Court soon.

Wrestling coaches are particularly sensitive to cuts in men's programs since collegiate teams have been discontinued in that sport.

"We are interested that the way Title IX is interpreted creates a huge incentive to destroy men's sports," said Leo Kocher, head wrestling coach at the University of Chicago and cochair of a joint task force of USA Wrestling and the wrestling coaches' association. "What has to happen is not so much that the Supreme Court takes the case as that we have some honest representation of what the issue is in a public debate.

"The question is how long will Title IX continue to be interpreted in a way that levels down male athletics?"

The feeling is that a case testing the Title IX interpretation eventually will again find its way through the courts and provide a hearing on the issues.

But US Swimming's Essick said that now the court process has been exhausted in the Brown case, the only way to protect men's sports or nonrevenue sports in general is legislation.

"I think legislation is the answer, but I don't know where or how," he said. "That's a much tougher road than the Supreme Court."