"Students who choose to attend Brown University arrive with different levels of interest in varsity sports, and that interest is beyond the University's control," said Walter B. Connolly Jr., the University's lead trial attorney. "The University's program of varsity sports meets those differing levels of interest equitably and effectively, as Title IX requires. In fact, Brown currently offers opportunities for varsity participation to women that are well in excess of their demonstrated level of athletic interest."
In addition to statistical evidence about athletic interest and ability, the University offered several different methods of determining varsity athletic participation opportunities. The definition of a participation opportunity has proven particularly difficult during the trial. U.S. District Court Senior Judge Raymond Pettine has repeatedly questioned witnesses on this point and has asked for written definitions.
Those two questions - the role of athletic interest and abilities and the measurement of participation opportunities - have dominated the trial since announcement of a partial settlement on Sept. 28. That settlement, in which women athletes (plaintiffs in the trial) acknowledged that Brown's current treatment of men's and women's varsity teams is non-discriminatory, removed issues of equal facilities, coaching, recruitment, training room access, travel policy and so forth from consideration in court.
"The University has contended from the very beginning of this case that Title IX does not require an institution to maintain the same ratio of men to women athletes as men to women in the undergraduate student body," said Beverly E. Ledbetter, Brown's vice president and general counsel. "Title IX clearly states that it is the interests and abilities of students that must be accommodated, not raw numbers. Every relevant data source, whether inside or outside the University, clearly shows that men and women have different levels of interest in participating in varsity athletics."
Because there is no single accepted procedure or standard for determining athletic interest among young people, the University arranged for an independent analysis of virtually every relevant data source on athletic interest in a variety of populations. Those included data sources from the U.S. Department of Education, the College Board (which administers the Scholastic Aptitude Test, taken by nearly all college applicants), the National Federation of State High School Associations, the Cooperative Institutional Research Program at UCLA, and other independent national groups outside the University, as well as the University's own admissions data. In all cases, from eighth graders to Brown students, males demonstrated a significantly higher interest in athletics than females. The representation of females among students who expressed an interest in athletics generally fell within the 36 to 43 percent range.
The 1993-94 Athletics Participation
Survey, prepared by the National Federation of State High School
Associations, reveals the following numbers of participants in high school
athletics over more than two decades. High school participation rates for
females have increased only 3.3 percent over the last 14 years. This is
significant because students who do not play varsity sports in high school are
highly unlikely to play them in college, according to expert testimony by Finis
Welch, a labor economist and statistician. (Figures for female representation,
not calculated by NFSHSA, represent the percentage of all athletic participants
who were female.)
Males Females Female Representation 1971 3,666,917 294,015 7.4 1975-76 4,109,021 1,645,039 28.6 1980-81 3,503,124 1,853,789 34.6 1985-86 3,354,284 1,757,884 34.4 1990-91 3,406,355 1,892,316 35.7 1991-92 3,429,853 1,940,801 36.1 1992-93 3,416,389 1,997,489 36.9 1993-94 3,478,530 2,124,755 37.9(Students participating in more than one sport may be counted twice.)
Several national longitudinal studies, conducted under the auspices
of the U.S. Department of Education's National Center for Education Statistics
(NCES), followed students from eighth grade through high school. These cohorts
showed a much larger athletic participation among males.
Although NCES gathered information on a variety of students, the figures given
below represent only those students who intended to go to college and placed in
the top 25 percent on each of a series of standardized tests in math, science,
reading and social studies administered during the sophomore year.
1990 HS Sophomores 1992 HS Seniors %M %F F. Rep. %M %F F. Rep.Member of varsity team 66.7 54.9 45.1 57.8 43.3 42.8 Say sports important 85.1 72.6 46.0 76.0 59.1 43.7 among friends Play ball with friends 60.6 28.5 32.0 37.9 17.0 31.0 at least once a week Take sports lessons 15.7 16.3 50.9 7.4 5.8 43.9 at least once a week
(%M and %F figures represent the percentage of males and females in the overall population who responded affirmatively.) (Female Representation figures, calculated as %F divided by (%M + %F), represent the percentage of females among just those students who answered affirmatively.)
Most high school students who plan to attend college take the Scholastic Aptitude Test (SAT), administered by the College Board and given by Educational Testing Service, the largest testing organization in the world. Test takers may also complete a Student Descriptive Questionnaire (SDQ), which is sent along with scores to schools of the student's choosing. (Brown requires all applicants to take the SAT.) Among students who ask that their scores be sent to Brown and who declare an interest in sports, men outnumber women by a ratio of approximately 3:2.
Class of %M %F M. Rep. F. Rep. 1992 48.66 30.80 61.24 38.76 1993 46.93 30.95 60.26 39.74 1994 46.34 29.84 60.83 39.17(%M and %F figures represent the percentage of each sex interested in sports among all SDQs sent to Brown, whether or not students actually applied. M. Rep and F. Rep figures represent the percentage of each sex only among SDQs listing an interest in sports. They assume an equal number of SDQs from males and females.)
Annual national surveys of more than 220,000 college freshmen at more than 400 colleges and universities, conducted by the Cooperative Institutional Research Program (CIRP) at UCLA, show a higher rate of athletic interest among men in several categories. Among freshmen at private, highly selective universities:
Class of 1989 Class of 1993 %M %F F. Rep. %M %F F. Rep. Expect they will play 20.2 12.4 36.8 20.9 14.3 40.6 varsity athletics Won varsity letter in 60.7 48.0 44.2 na na na HS senior year Exercized at least 16 21.0 10.5 33.3 25.3 14.7 36.8 hours week as HS seniors
Percent of Class Among Students Interested in One or More Sports Who Are Female % Female %F (93-94)* %F (94-95)*All Applicants: 1994 49.69 42.75 44.17 44.72 1995 48.21 40.02 42.86 43.40 1996 49.59 40.94 42.45 42.99 1997 51.67 42.78 42.26 42.80 1998 53.26 44.00 41.92 42.46 Admitted Applicants: 1994 50.12 42.44 43.44 43.98 1995 49.77 43.29 44.64 45.19 1996 53.00 45.93 44.08 44.63 1997 53.69 46.12 43.59 44.13 1998 53.45 45.91 43.62 44.16 Committed Applicants: 1994 51.05 43.61 43.70 44.24 1995 49.57 43.88 45.43 45.97 1996 52.21 45.38 44.32 44.86 1997 54.43 45.24 41.99 42.53 1998 54.09 45.67 42.75 43.29 * Figures in these columns are normed to account for actual percentage of females in the student body. In 1993-94, women accounted for 51.14 percent of undergraduates. For 1994-95 the number is 51.69 percent.
% of Men % of Women Participated in high school varsity sports 75.59 56.10 Lettered in high school varsity sports 64.96 49.19 Received all-state, all-league or 39.76 27.64 other recognition in high school Offered scholarships by another 10.24 4.47 college or university Played club sports while in high school 39.92 23.97 Participate in intramurals at Brown 23.23 7.32 Participate in club sports at Brown 14.17 10.98
Brown also commissioned a national statistics consulting firm to analyze copies of applications from students who matriculated at Brown in the classes of 1995 through 1998. In every class, men were more likely than women to declare an interest in varsity sports.
1995 1996 1997 1998 All Classes %M F% %M %F %M %F %M %F %M %F Interested in 57.65 46.08 50.35 44.64 52.25 40.76 51.97 40.05 53.11 42.48 one or more University funded sport(s) Interested in 3.05 1.12 4.17 1.95 5.34 1.26 4.27 2.96 4.20 1.87 one or more donor-funded sport(s) Interested in 4.83 2.05 5.38 3.12 3.84 2.94 4.74 .49 4.69 2.95 sport(s) not currently offered at Brown No listed 34.46 50.75 40.1 50.29 38.56 55.04 39.02 53.49 38.00 52.69 sports interest
The Ivy League places mandatory limits on the size of travel squads for varsity teams. If Brown defined participation opportunities as total positions available on travel squads, women athletes currently have as many as 32 unfulfilled participation opportunities. Seven women's teams have additional positions available, according to NCAA sports sponsorship statistics. By contrast, all men's teams are fully subscribed, with the exception of crew.
Because squad sizes are highly volatile, Brown offered three different measures: Initial Squad Size (generally before the first competition), Squad Size After Deletions (taking cuts and withdrawals into account) and squad sizes as reported to the NCAA. (Numbers in parentheses indicate unused participation opportunities.)
Ivy League Initial Squad List Sponsorship Travel Squad Squad After Deletions Form(NCAA) Basketball 15 14 (1) 14 (1) 14 (1) Crew 30 26 (4) 26 (4) 25 (5) Cross Country 12 20 19 8 (4) Fencing 10/12 12 11 10 Field Hockey 18 42 37 25 Gymnastics 12 13 13 12 Ice Hockey 20/22 22 21 20 Lacrosse 26 37 32 25 (1) Soccer 18 22 22 22 Softball 20 18 (2) 17 (3) 17 (3) Squash 10 16 16 12 Swimming/Diving 26 30 28 26 Tennis 10 13 10 10 Indoor Track 38/44 42 38 38 Outdoor Track 46 42 (4) 34 (12) 34 (12) Volleyball 15 12 (3) 9 (6) 9 (6) TOTALS 326/336 381 (14) 347 (26) 307 (32)
(Fencing and indoor track allow larger travel squads when more than two schools compete in a meet. Ice hockey allows a larger travel squad when games are played in successive weekends, but only 20 players may dress for competition. The table above uses the larger figure. All figures are for the 1993-94 season.)
Over the years, the University has supported teams of varying sizes. The largest size for each team in recent years can be taken as a measure of demonstrated capacity. Using that as a definition of total participation opportunities, women athletes currently have more than 93 unused varsity opportunities (numbers in parentheses indicate unused participation opportunities).
Maximum Squad Sponsorship 1986-87 - 1993-94 Form (NCAA) Basketball 15 14 (1) Crew 30 25 (5) Cross Country 17 8 (9) Fencing 20 10 (10) Field Hockey 38 25 (13) Gymnastics 13 12 (1) Ice Hockey 22 20 (2) Lacrosse 36 25 (11) Soccer 26 22 (4) Softball 22 17 (5) Squash 14 12 (2) Swimming/Diving 32 26 (6) Tennis 10 10 Track 52 34 (18) Volleyball 15 9 (6)
TOTALS 362 269 (93)
Another way of calculating participation opportunities is to consider squad sizes in sports where men's and women's teams could be expected to have equal numbers of participants - men's and women's basketball or tennis, for example. If women's teams had as many participants as men's teams in matched sports, women athletes currently have 85 unused varsity participation opportunities (numbers in parentheses indicate unused participation opportunities).
Men's 1993-94 Women's 1993-94 Squad Size Squad Size Baseball/Spotball 28 17 (11) Basketball 15 14 (1) Crew 30 25 (5) Cross Country 12 8 (4) Fencing 18 10 (8) Ice Hockey 25 20 (5) Lacrosse 41 25 (16) Soccer 30 22 (8) Squash 26 26 Swimming/Diving 13 10 (3) Tennis 47 38 (9) Indoor Track 47 34 (13)TOTALS 346 261 (85)
"The plaintiffs have introduced no evidence that women are interested in athletic participation at the same rate as men," Connolly said, "nor have they explained why women's teams cannot maintain their squads either at historical capacities or at sizes equal to corresponding men's teams. Given the breadth of Brown's current varsity program and the number of unused varsity opportunities already available to women, any suggestion that Brown should provide additional teams for women is nonsensical, even punitive."
Connolly also pointed out that in cases at other schools the U.S. Department of Education's Office of Civil Rights, which enforces Title IX provisions, has ruled that differences of as much as 7 percent between the percentages of women on varsity teams and in the student body satisfy Title IX's "substantially proportionate" requirement and are not discriminatory. In the current academic year, women make up approximately 51 percent of Brown's student body and are expected to account for as much as 43 percent of varsity athletes.
"As it stands, Brown's projected participation rates for the current year approach OCR's 7-percent range," Ledbetter said. "If women athletes take better advantage of existing participation opportunities or if the University places upper limits on the size of men's teams, Brown could easily meet the plaintiffs' own definition of compliance, which is based on achieving numerical parity rather than accommodating the relative athletic interests and abilities of men and women."
Brown, which already offers 34 intercollegiate varsity teams (more than twice the national average), has always contended that such measures should not be necesary in order to comply with Title IX, Ledbetter said.
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