Brown appeals decision which ruled it violated Title IX

Attorneys representing Brown University asked a federal appeals court last week to overturn a ruling that the university discriminated against its female athletes and violated Title IX. The ruling, by U.S. District Court Judge Raymond Pettine, stated that Brown's athletic program is not in compliance with Title IX, the 1972 law that prohibits sexual discrimination at schools that receive funds from the federal government. Title IX states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." In his ruling, Pettine said that Brown violated Title IX because its male-to-female ratio of varsity athletes -- roughly a 60-40 ratio in 1992, but currently a 52-48 proportion-- did not "mirror" the 48-52 ratio of all undergraduates. Brown officials said that Pettine's reasoning does not show that the university's female athletes are the subject of discrimination. "Brown's athletic program is non-discriminatory," said Mark Nickel, Brown's director of public relations. "We give equal opportunity to everyone. Students are free to choose as they want. Brown offers 18 teams on which women may participate and 18 for men, so the opportunity is there." Nickel added that up to 100 spaces remain open on the university's women's varsity teams. He also said that Brown is not legally required to match the ratio of its female athletes with that of all students if the female students have other interests. Beverly Ledbetter, Brown's vice president and general counsel, said she agrees. "The university's position is that you cannot require an institution to match the ratio of its athletes to all students," Ledbetter said. "We are only cautiously optimistic, but we are confident about our opinion." Brown officials cited several objections with the court's ruling, including that the court used inaccurate figures and an inappropriate compliance test -- and also used it wrongly. "The test doesn't measure equality of opportunity," Nickel said. "It's applied against the wrong population of students." In the appeal, officials said that the court erred by equating "participation opportunity" with "participation rate." Nickel also said that previous Title IX rulings allowed for a seven-percent difference between the male-female ratio of a school's varsity athletes and that of all undergraduates. Brown currently has a four-percent difference, with females comprising 52 percent of undergraduates and 48 percent of varsity athletes. "Even if we use the court's ruling, we still seem to be in compliance," Nickel said. The lawsuit against Brown began in spring 1992 when members of the women's gymnastics and volleyball teams alleged sexual discrimination after funding for their teams had been cut. One year earlier, Brown's athletic department withdrew funds from women's gymnastics and volleyball and men's water polo and golf as a part of university-wide budget cuts. The cuts affected approximately 60 athletes in about the same male-female ratio for all Brown athletes at that time -- 60-40. Pettine found for the plaintiffs on March 29, 1995 and ordered Brown to submit a compliance plan. Brown officials immediately announced their intention to appeal. Brown's first attempt at appeal in July 1995 was thrown out on a legal technicality. The appeals court said it did not consider Pettine's decision final because it did not outline a remedy. Two months later, Brown submitted a compliance plan, which Pettine rejected. He ordered Brown instead to provide full funding for three donor-funded women's varsity teams and to advance one intercollegiate club team to fully-funded varsity status, sparking outrage from Brown President Vartan Gregorian. "Even though women at Brown participate in intercollegiate sports at three times the national average, every one of our women's teams has room for additional players," he said in a statement following Pettine's order. "The desire to compete cannot be manufactured or dictated." The rejected plan Brown offered would have reduced participation opportunities for men, created new junior varsity women's teams to increase participation and required existing women's teams to meet minimum squad sizes. The court has not made an indication of when its decision on the appeal will be made. "I'd be surprised if it came earlier than a couple months from now," said Nickel, who added that the court took a similar amount of time to reach its earlier decision. Organizations representing over 2,000 colleges and universities have filed friend-of-the-court briefs on Brown's behalf. Among those supporting Brown's position are the Association of American Universities, the American Council on Education, the Independent Women's Forum and universities, including New York University, Johns Hopkins University and the University of Notre Dame.

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