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Judge Rules Against Brown in Title IX Case

By Sewell Chan

In a landmark decision with broad implications for college athletic programs across the U.S., a federal judge ruled last Wednesday that Brown University had discriminated against female athletes when administrators withdrew funding for women's gymnastics and volleyball teams in 1991.

Brown was found to have violated Title IX of the Education Amendments of 1972, the federal statute that forbids sex discrimination by schools that receive any federal funds.

Female athletes filed the class-action lawsuit in 1992 against Brown following the demotion of the full-varsity teams to "donor-funded" status. Donor-funded teams are supported only by private donations.

"This is a strong reaffirmation of our interpretation of Title IX," said Leslie A. Brueckner, co-counsel for Trial Lawyers for Public Justice, a public advocacy firm that represented the plaintiffs. "It shows that courts are not going to sit back and tolerate blatant violations of this statute."

In a 69-page ruling, Judge Raymond J. Pettine of the U.S. District Court in Providence, R.I. ruled that Brown had failed three tests of compliance with Title IX.

"At Brown, far more male athletes are being supported at the university-funded varsity level than are female athletes, and thus, women receive less benefit from their intercollegiate varsity program as a whole than do men," Pettine wrote.

The precedent-setting decision may have wide-ranging ramifications for other schools. Faced with budget cuts, schools may have to reconsider cuts to women's sports programs and eliminate men's teams instead. For instance, Cornell cut its men's gymnastics and fencing teams in 1993.

The decision also opens the way for new legal challenges. Since 1992, several institutions have faced Title IX athletic-discrimination suits, including Indiana University of Pennsylvania and the Kentucky High School Athletic Association.

Many schools will have to re-examine whether they offer equal opportunities for participation in sports to women and men.

Brown, which was forced to reinstate women's gymnastics and volleyball shortly after the suit was filed in 1992, has 16 men's and 17 women's varsity teams, as well as a co-ed golf team. Although women are 51 percent of Brown's student body, they represent only 38 percent of its approximately 800 varsity athletes.

But Brown plans to appeal the decision to the U.S. First Circuit Court of Appeals in Boston, according to Mark M. Nickel, director of the Brown news bureau.

"The irony is that Brown, with the possible exception of Harvard, has probably thebiggest and one of the best programs in women'sathletics in the country," Nickel said.

Throughout the three-month trial last fall,Brown's attorneys presented a dozen studiesarguing that women's interests and abilities insports were less than men's, which would justifylower female participation in athletic programs.

"The university believed it demonstrated incourt that interest and ability is not evenlydistributed between men and women," Nickel said.

But Brueckner said Brown's policies only serveto perpetuate past discrimination against women.

"It may be that there's less relative interestand ability on the part of women, but that ismerely a function of social discrimination,"Brueckner said, "and the goal of Title IX is toprovide equality of treatment so that interest andability can grow."

Lynette Labinger, chief counsel for theplaintiffs in the suit, dismissed Brown's claimsas "a totally bankrupt concept."

"As hard as Brown tried to demonstrate thisrelative interest level--and they spent at least$100,000 in expert witness fees to try to doit--they couldn't," she said.

A school is considered in compliance with TitleIX if its ratio of female to male athletes isproportionate to its total enrollment, if it hasdemonstrated continuing expansion of its athleticprogram to meet female athletes' interests andabilities or if its current program "fully andeffectively accommodates" those interests. Pettineruled that Brown failed to meet any of the threetests.

While Nickel admitted Brown has "not had ahistory of continuing expansion," he said theschool's women's sports program went through ahuge growth spurt in the 1970s.

"In the intervening years there has been farless for the university to do in terms of buildingthe size of the program," Nickel said.

But in his ruling, Pettine noted that only twonew teams had been added since 1977.

"Brown has not proven that the percentage ofwomen participating in, intercollegiate athleticshas increased," the judge added.

Pettine also ruled that Brown failed toaccommodate the abilities of its female athletesby keeping its women's water polo team as a clubsport and women's fencing and skiing asdonor-funded teams, and by demoting its gymnasticsteam in 1991.

Labinger emphasized that the ruling does notrequire that the number of women athletes at Brownbe strictly proportional to the school's totalfemale enrollment. "You can have a significantdisparity and still be in compliance" by meetingthe other two tests, she said.

Nickel defended the demotion of the gymnasticsand volleyball teams, noting that Brown faced a$1.6 million budget deficit in 1991 and that itsmen's golf and men's water polo teams had beendemoted at the same time.

The case began when the women sued, obtaining apreliminary injunction reinstating the teams inDecember 1992. The injunction was affirmed by theU.S. First Circuit Court of Appeals the followingyear, pending the trial.

During the three-month trial that began inSeptember, Brown tried to demonstrate a disparityin interest in sports between its male and femalestudents, without success.

The judge gave Brown three options forcompliance with Title IX.

"It may eliminate its athletic programaltogether, it may elevate or create the requisitenumber of women's positions, it may demote oreliminate the requisite number of men's positionsor it may implement a combination of theseremedies," Pettine wrote.

The judge added that cutting wrote. sports isnot the only feasible option for financiallystrapped schools like Brown.

"Brown certainly retains the option toredistribute its resources in a way that mayslightly reduce the 'standard of living' for itsuniversity-funded varsity sports in order toexpand the participation opportunities for itswomen athletes," Pettine wrote.

The judge gave Brown 120 days to file a plan tocomply with Title IX, but stayed the order pendingthe university's appeal.

Labinger said she hoped the decision would leadschools to rethink their commitment to women'ssports programs. She noted that Harvard allottedan additional $100,000 for women's sports in 1993,shortly after the preliminary injunction againstBrown was filed.

Harvard has 21 men's and 20 women's varsityteams, the most of any Division I school in theNational Collegiate Athletic Association (NCAA),according to Michael A. Jackman, assistantdirector of the sports information office.

Jackman said he could not recall any Harvardteam being eliminated or denied Universityfunding, but refused to comment on the Browndiscrimination suit.

Vice President for Government, Community andPublic Affairs James H. Rowe III '73 declined tocomment on the decision, saying he had not read ityet.

But Rowe defended Harvard's athletic program."I think we have a superlative record," he said."We have more varsity sports than any otheruniversity that I know of."

Director of Athletics William J. Cleary Jr.'56-'58 could not be reached for comment lastnight

Throughout the three-month trial last fall,Brown's attorneys presented a dozen studiesarguing that women's interests and abilities insports were less than men's, which would justifylower female participation in athletic programs.

"The university believed it demonstrated incourt that interest and ability is not evenlydistributed between men and women," Nickel said.

But Brueckner said Brown's policies only serveto perpetuate past discrimination against women.

"It may be that there's less relative interestand ability on the part of women, but that ismerely a function of social discrimination,"Brueckner said, "and the goal of Title IX is toprovide equality of treatment so that interest andability can grow."

Lynette Labinger, chief counsel for theplaintiffs in the suit, dismissed Brown's claimsas "a totally bankrupt concept."

"As hard as Brown tried to demonstrate thisrelative interest level--and they spent at least$100,000 in expert witness fees to try to doit--they couldn't," she said.

A school is considered in compliance with TitleIX if its ratio of female to male athletes isproportionate to its total enrollment, if it hasdemonstrated continuing expansion of its athleticprogram to meet female athletes' interests andabilities or if its current program "fully andeffectively accommodates" those interests. Pettineruled that Brown failed to meet any of the threetests.

While Nickel admitted Brown has "not had ahistory of continuing expansion," he said theschool's women's sports program went through ahuge growth spurt in the 1970s.

"In the intervening years there has been farless for the university to do in terms of buildingthe size of the program," Nickel said.

But in his ruling, Pettine noted that only twonew teams had been added since 1977.

"Brown has not proven that the percentage ofwomen participating in, intercollegiate athleticshas increased," the judge added.

Pettine also ruled that Brown failed toaccommodate the abilities of its female athletesby keeping its women's water polo team as a clubsport and women's fencing and skiing asdonor-funded teams, and by demoting its gymnasticsteam in 1991.

Labinger emphasized that the ruling does notrequire that the number of women athletes at Brownbe strictly proportional to the school's totalfemale enrollment. "You can have a significantdisparity and still be in compliance" by meetingthe other two tests, she said.

Nickel defended the demotion of the gymnasticsand volleyball teams, noting that Brown faced a$1.6 million budget deficit in 1991 and that itsmen's golf and men's water polo teams had beendemoted at the same time.

The case began when the women sued, obtaining apreliminary injunction reinstating the teams inDecember 1992. The injunction was affirmed by theU.S. First Circuit Court of Appeals the followingyear, pending the trial.

During the three-month trial that began inSeptember, Brown tried to demonstrate a disparityin interest in sports between its male and femalestudents, without success.

The judge gave Brown three options forcompliance with Title IX.

"It may eliminate its athletic programaltogether, it may elevate or create the requisitenumber of women's positions, it may demote oreliminate the requisite number of men's positionsor it may implement a combination of theseremedies," Pettine wrote.

The judge added that cutting wrote. sports isnot the only feasible option for financiallystrapped schools like Brown.

"Brown certainly retains the option toredistribute its resources in a way that mayslightly reduce the 'standard of living' for itsuniversity-funded varsity sports in order toexpand the participation opportunities for itswomen athletes," Pettine wrote.

The judge gave Brown 120 days to file a plan tocomply with Title IX, but stayed the order pendingthe university's appeal.

Labinger said she hoped the decision would leadschools to rethink their commitment to women'ssports programs. She noted that Harvard allottedan additional $100,000 for women's sports in 1993,shortly after the preliminary injunction againstBrown was filed.

Harvard has 21 men's and 20 women's varsityteams, the most of any Division I school in theNational Collegiate Athletic Association (NCAA),according to Michael A. Jackman, assistantdirector of the sports information office.

Jackman said he could not recall any Harvardteam being eliminated or denied Universityfunding, but refused to comment on the Browndiscrimination suit.

Vice President for Government, Community andPublic Affairs James H. Rowe III '73 declined tocomment on the decision, saying he had not read ityet.

But Rowe defended Harvard's athletic program."I think we have a superlative record," he said."We have more varsity sports than any otheruniversity that I know of."

Director of Athletics William J. Cleary Jr.'56-'58 could not be reached for comment lastnight

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