INSIDE SPORTS: TITLE; The Battle Has Begun

Jenny Schuck never wanted to be famous, but fate -- and Cornell University budget cuts -- intervened. In early 1992, Schuck was a freshman gymnast when her team -- along with the fencing teams and the men's gymnastics team -- was eliminated by Cornell Athletic Director Laing Kennedy. But the athletes would not accept being cut without a fight, and on behalf of the women's gymnastics and women's fencing teams, they filed a class-action lawsuit against Cornell. The charge in Schuck v. Cornell was gender discrimination under Title IX. Enacted in 1972, Title IX requires that any educational institution receiving federal funding provide equal opportunities to participate in all activities, including athletics, to both males and females. Penn is currently dealing with its own Title IX problems. After more than a year of informal discussions, the female coaches and athletes decided to follow the course set at many other schools and take the matters to a lawyer. On May 26, 1994, the Women's Law Project filed an official complaint with the Office of Civil Rights of the U.S. Department of Education alleging "widespread gender-based discrimination in the Athletic Department of the University of Pennsylvania." "We knew something was wrong, but we weren't being heard," Penn women's crew coach Carol Bower said. "We had complained about it as individuals. We knew we all had to work together, because we would be listened to better as a group." The Penn complaint came four months before Brown University went to court on similar charges. On Monday, April 29, 1991, Brown announced the elimination of four varsity sports in an effort to avoid a deficit. By cutting funding for men's water polo, men's golf, women's gymnastics and women's volleyball, the Brown Athletic Department hoped to save nearly $75,000. After almost a year of internal negotiations, Brown was hit with a class-action lawsuit alleging Brown had violated Title IX. The suit was filed by the Trial Lawyers for Public Justice Foundation on behalf of nine members of the women's gymnastics team. At the time the suit was filed, Arthur Bryant, the executive director of TLPJ, said his firm was expecting Brown to settle and reinstate the teams. He was wrong. The school chose to go to court instead, beginning a legal battle in which there is still no end in sight. "Brown can do more for women's athletics," said Lynette Labinger, TLPJ lead counsel in Cohen v. Brown University. "They may not think they can, but they can. They can and they have. They put more money into women's athletics when they said they didn't have any." In November 1992, the U.S. District Court in Providence, R.I., heard TLPJ's request for a preliminary injunction to temporarily restore the two women's teams to varsity status while the lawsuit was going on. Senior U.S. District Court Judge Raymond J. Pettine ruled in favor of the plaintiffs, reinstating the teams and preventing Brown from cutting funding from any female athletic program until the suit is resolved. Brown appealed this decision to the First Circuit Court of Appeals in Boston, but Pettine's opinion was affirmed. "This case started when Brown dropped two men's and two women's sports to save less than $80,000," Women's Sports Foundation executive director Donna Lopiano said in a statement last week. "They have now spent close to half a million dollars litigating this case. If that money was spent on Title IX compliance, Brown wouldn't be in the courts." Two days after the Brown trial began, both sides reached a partial settlement declaring that Brown must continue to treat its men and women athletes comparably. The trial, which was expected to end in October, dragged on, finally coming to a close on December 9, 1994. One week ago, Pettine supported his own, previously-issued injunction and ruled in favor of the plaintiffs. In a decision Labinger called, "totally favorable to our position," the Court ordered Brown to comply with Title IX within 120 days. "Title IX does not require an institution to provide any athletics opportunities to its students," Pettine wrote in his 69-page opinion. "What is does require is that an institution prove equal opportunity to both genders in any program it chooses to offer." Though Brown says it will appeal, there is no reason to believe the First Circuit Court will overturn Pettine's ruling. "Brown seems to be on the warpath," said Deborah Brake, staff counsel at the National Women's Law Center. "They had experts in court trying to prove men are more interested in sports and playing sports than women. That is a rather strange opinion for one of the most liberal schools in the East. Penn does not want to take the road that Brown has taken." The Penn complaint does not revolve around the same issues, though. At the University, 57 percent of the student body is male and 43 percent female. However, Penn athletes are 67 percent male and 33 percent female. Of the 30 varsity sports, 16 are designated for men and 14 for women. This disparity between female representation in the student body as a whole and the athletic teams does not in itself constitute a violation of Title IX. But many female coaches and athletes have complained of inequity. Penn has not cut women's teams. To the contrary, the University promoted women's soccer from club to varsity status three years ago, and has recently upgraded the head-coaching position to full-time status. This growth in women's participation is a mark in Penn's favor under Title IX. However, female coaches and athletes at Penn are not happy with the way they are being treated relative to their male counterparts. Among other charges, the complaint alleges disparities in the "overall availability of funds," "quality of competitive opportunities," and the "quality, amount, suitability and availability of equipment and supplies." "Traditionally, guys had more than women, and that was considered normal," Bower said. "We are trying to push normal towards equity." The Penn complaint is not going to court?yet. Both sides would like to keep things "friendly" as long as possible. "The best and proper way of doing this is to settle it in-house," Penn athletic director Steve Bilsky said. "It would be in the best interests of the athletic program to have this resolved amiably. It is positive and encouraging that the parties think enough of each other to settle this in a good-faith manner. That separates us from Brown." About a month ago, the University and the female coaches and athletes agreed to on an impartial negotiator, Fred Shabel. Shabel is no stranger to the University, having served as Penn athletic director at a time when Carol Tracy was in charge of the Penn Women's Center. Tracy is currently executive director of the Women's Law Project, the firm which is defending the Penn women. In addition, Shabel is one of Bilsky's mentors. Neither Bilsky nor the Women's Law Project would comment on the selection of a mediator. "We are attempting to resolve the issue through negotiation," Bilsky said. "We are trying to clarify the issues in the complaint and find a means to resolve it that is in everyone's best interests." To date, there has been only one Title IX-based ruling in favor of a university. And that case, filed against Colgate University, was decided on a technicality. Normally Title IX lawsuits are class-action, charging that the situation has effects that reach farther than the particular individuals filing the suit. Because in the Colgate case each of the plaintiffs filed as individuals, the judge ruled against the women because they had graduated by the time the case finally got through trial, and the decision could therefore have no bearing on their collegiate athletic experiences. At Cornell, the Athletic Department chose to negotiate with the female coaches and athletes rather than spend a fortune in legal costs to defend itself against gender-based discrimination claims. Yet the Cornell settlement meant more than just a return to the status quo. The women's gymnastics and fencing teams were reinstated with full varsity status. In addition, funding to those teams was increased. "This is a time-consuming endeavor on all sides," Bilsky said. "The energies put into resolving this could be put into other things such as coaching our teams and recruiting." But for female athletes like Jenny Schuck, who are involved in Title IX cases, the situation is simpler than that. "It means existence," Schuck said.

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