Brown denied appeal on gender equity lawsuit

After several appeals on a 1992 lawsuit, a federal court has once again found Brown University in violation of the Title IX gender-equity law. The 1972 statute requires universities that receive federal funding to provide male and female athletes with equal resources. In a 2-1 decision last Thursday, the U.S. Court of Appeals for the First Circuit in Boston upheld a 1995 decision that ruled Brown was not in compliance with Title IX. The appeals court's 106-page decision is the latest chapter in the nearly five-year-old case. The saga began in April 1992 when two female Brown athletes filed a class-action lawsuit against the Ivy League university. The Washington-based Trial Lawyers for Public Justice, which has represented the women, argued Brown's decision to cut two women's teams in April 1991 was a violation of Title IX. Senior District Judge Raymond Pettine said in the July 1995 decision that Brown had not provided equal opportunities for male and female athletes and must fully fund four additional varsity women's teams. However, last week's ruling reversed the latter part of Pettine's decision, saying Brown is not required to provide the funding. Although the circuit court last week ruled in favor of the plaintiffs, both sides claimed victory -- to a degree. "It was an important part of the case and an important point to win on," Brown lawyer Jeffrey Michaelson told the Providence Journal-Bulletin, referring to the reversal of Pettine's order. Lynette Labinger, lead attorney for the plaintiffs, called the decision "an enormous victory for equal rights and women throughout the country." "Once again, the same standard that's reflected in the original appeals decision and in appeals decisions throughout the country has been affirmed," Labinger said. Brown spokesperson Mark Nickel said the university is currently considering several options, among them taking the case, Cohen v. Brown, to the U.S. Supreme Court. Brown has 90 days to appeal to the country's highest court but just two weeks to ask the entire group of First Circuit judges to reconsider the case. According to Nickel, Brown will announce its course of action early next week. Nickel added that both sides intend to appeal the decisions as many times as necessary. Labinger said if Brown appeals the decision to either court, the school is not automatically entitled to a hearing. "Both of those [appeal options] are discretionary," she said. "They can be denied without any explanation or justification." Senior Judge Hugh Bownes, in writing the majority opinion for himself and Judge Norman Stahl, rejected Brown's argument that women were less interested in sports than men and that Title IX constituted affirmative action or required quotas. "Brown's talismanic incantation of 'affirmative action' has no legal application to this case and is not helpful to Brown's cause," Bownes's opinion read. "Title IX is not an affirmative action statute; it is an anti-discrimination statute." Chief Judge Juan Torruella, however, strongly dissented. He argued the Department of Education's three-pronged compliance test for Title IX "does not make sense" because, among other shortcomings, it does not separate men's contact sports from other sports. "[Brown has] established a legal rule that straitjackets college athletics programs by curtailing their freedom to choose the sports they offer," Torruella wrote. In the 1995-96 school year, 54 percent of Brown's athletes were male compared with 48 percent of total undergraduates. When the lawsuit was originally filed, men comprised 60 percent of the school's student-athlete population. Penn settled a similar Title IX lawsuit in 1995 by agreeing to hire several full-time women's coaches, upgrade facilities and form a gender equity advisory committee.