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Eliminate men's sports if you must, appeals court says, but not women's.

By the time the First Circuit Court of Appeals announced its decision in the Brown University Title IX case this past November, numerous advocates for women's athletics and institutional athletic directors had been anxiously awaiting this ruling for 20 months. Even still, the 2-1 decision in Cohen v. Brown University (101 F.3d 155, 1996 U.S. App.), which upheld a district court's ruling that Brown University had discriminated against female athletes by eliminating two women's sports teams in 1991, may not be the last word in this case.

Judge Raymond Pettine's district court decision [879 F.Supp. 185, D.R.I. 1995] was based on the criteria used by the Office for Civil Rights in determining Title IX compliance: financial assistance (which did not pertain to this case because Brown does not offer athletic scholarships), benefits and opportunities (which were addressed in a settlement agreed to by both parties prior to the court case), and effective accommodation of student interests and abilities (which states that the percentage of student-athletes by gender must be substantially proportionate to the percentage of undergraduate students by gender).

Brown demoted its women's gymnastics and volleyball teams, along with men's water polo and golf, from varsity to donor-funded varsity status. These sport programs thus lost the support, privileges and funding accorded varsity sport teams at Brown. In 1993-94, the university was composed of 51 percent female undergraduate students, while 38 percent of the student-athletes at Brown were female. Pettine found that the percentage of female student-athletes was not substantially proportionate to the percentage of female undergraduate students, and that Brown failed to demonstrate that it had maintained a practice of program expansion for female student-athletes, or that its programs accommodated the interests and abilities of the underrepresented gender. [See "Fight or Flex," June 1995, p. 13.]

As part of the district court's ruling, Brown was ordered to submit a compliance plan dictating how the university was going to achieve compliance with Title IX within the athletic department. Brown's plan called for the capping of the size of men's teams and the creation of junior-varsity teams in existing women's sports. Pettine threw out Brown's compliance plan and instead replaced it with his own plan, which called for elevating women's gymnastics, women's water polo, women's skiing and women's fencing.

Although the appeals court agreed with the district court that Brown's proposed compliance plan "fell short of a good-faith effort to meet the requirements of Title IX," the court found that the district court was wrong in rejecting this plan completely and instating its own plan. The appeals court stated that universities should be given as much freedom as possible in conducting their operations as long as they adhere to constitutional and statutory regulations. Thus, the court remanded the case back to the district court so Brown can submit a further plan regarding Title IX compliance.

The key argument in this case, as in other Title IX cases brought before the courts, is the issue of whether an institution is effectively accommodating the interests and abilities of the underrepresented gender with the program that is being offered. In this appeals case, Brown used a "relative interest" argument, stating that an athletics program is accommodating both genders equally if it accommodates the relative interests and abilities of its male and female students. This argument finds that an institution is in compliance if it meets the interests and abilities of the underrepresented gender to the extent that it meets the interests and abilities of the overrepresented gender. In support of this argument, Brown contended that the significant disparity in athletics opportunities for men and women at Brown is the result of a general difference in the level of interest among the genders in sports.

In response, the appeals court stated that interest and ability rarely develop in a vacuum, but rather evolve as a function of opportunity and experience. Women's lower rate of participation in athletics merely reflects the historical discrimination they have been experiencing, the exact reason for which Title IX was enacted.

In addition, the court made a point of stating that the Supreme Court has repeatedly condemned gender-based discrimination based upon "archaic and overbroad generalizations" about women. Further, the appeals court found that the Supreme Court has been "especially critical regarding the use of statistical evidence used to try and prove generalized, stereotypical notions about men and women."

Yet, the OCR's Title IX Policy Interpretations permit the use of statistical evidence in assessing the level of interest in sports, as Judge Juan R. Torruella noted in his dissenting opinion. Torruella took issue with the fact that Brown sought to introduce the NCAA Gender Equity Study and the results of an undergraduate poll on student interest in athletics, but was not permitted to do so. Torruella stated that if statistical evidence of interest levels is not to be considered by the courts, there is no way for institutions to show that they are effectively accommodating the interests and abilities of the underrepresented gender with their present programs.

Brown also argued that Title IX was forcing institutions to provide preferential treatment by requiring quotas in order to meet the numerical proportionality test. But the appeals court found that the burden of proof in a Title IX complaint requires female student-athletes to not only show a "disparity between the gender composition of the institution's student body and its athletic program," but also "that a second element - unmet interest - is present." In addition, where the plaintiffs meet the burden of proof regarding these two areas, the institution can still be found in compliance by showing a history and continuing practice of program expansion for the underrepresented gender. Thus, the court concluded that a quota system is not being used in determining Title IX compliance.

Two final issues contained in this case have an impact on Title IX's application and interpretation within athletics programs.

First, the court found that Brown's proposal to cut men's teams is a permissible means of Title IX compliance. Although the OCR, in its January 1996 review of its policy interpretations, states that cutting men's programs is not a good-faith method of compliance, it is an acceptable measure. This provides cash-strapped institutions with a means of complying with this law without worrying about budgetary problems - although it fails to follow the true intent of Title IX, to increase opportunities for the underrepresented gender, not to take opportunities away from the overrepresented gender.

Second, there exists concern that with their continuing Title IX court opinions, the courts are too involved in the governance of institutions. The appeals court seemed aware of this issue in rejecting the district court's compliance plan for Brown. Torruella also brought this concern up in his dissent when he stated that, "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 is no longer in control. The majority has put the power to control athletics and the provision of athletic resources in the hands of the underrepresented gender."

Brown University has stated that it will appeal this case to the Supreme Court, which has never heard a Title IX case. Thus, while five Circuit Courts of Appeal have ruled on Title IX, ADs are still without guidance from the land's highest court.

The Supreme Court represents another challenge for Brown, in that the court refused to hear the only previous Title IX case brought before it. If a Supreme Court hearing is held and ruled in favor of the plaintiff studentathletes, strength will be added to the current interpretations being used by the courts. If a Supreme Court hearing ends in a decision for Brown and some or all of its arguments, the current thinking and application of Title IX to athletic departments will be thrown into disarray. Administrators can only watch, and wait.

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