Among other problems, Pettine's ruling created new compliance standards and defined proportionality requirements that are tantamount to quotas and contrary to the original intent of Title IX legislation, University administrators said.
"Title IX was enacted to rid higher education of gender-based discrimination across the board, a goal Brown University enthusiastically supports," said Brown President Vartan Gregorian. "However, Judge Pettine's ruling and two decades of regulatory revision have turned Title IX completely around. Where Congress once sought to ensure equality of opportunity, Judge Pettine is now requiring an unwarranted numerical conformity and is intruding upon the legitimate administrative autonomy of colleges and universities.
"Colleges and universities are facing very hard choices today. They cannot allow their decision-making powers to be needlessly compromised," Gregorian continued. "We are determined to press our arguments at the Court of Appeals in Boston because we believe Judge Pettine's reading of Title IX provisions and his application of regulations are wrong in many respects, and that his ruling unfairly burdens the administrative autonomy of Brown and other institutions of higher learning."
Equality of treatment is not an issue in the case. Plaintiffs and their lawyers have agreed that Brown's program of women's intercollegiate athletics is a national leader in size and quality and that the University treats its men's and women's teams fairly and without discrimination. In fact, three days into the trial, both sides signed a partial settlement that endorsed the University's current policies for locker rooms, publicity, recruitment, equipment, assignment of coaches, travel arrangements and many other treatment issues. The University agreed to continue those practices for three years, and all treatment issues were removed from consideration in the trial. What remained was the issue of proportionality.
One of the University's primary objections to Pettine's ruling is that it ignored Title IX's requirement that universities accommodate the demonstrated athletic interest and ability of all students, as Brown's current athletic program does. Instead, the ruling reduces Title IX's non-discrimination purpose to a simple matter of numbers, requiring a "mirroring" of gender ratios between athletes and the general student body. The ruling effectively requires schools to provide additional teams for women without regard for the far greater demand among male athletes for additional teams. Brown, which offers 18 varsity sports for women, already supports intercollegiate teams in every sport played by at least 1 percent of NCAA Division I schools.
"One of the ways institutions can demonstrate compliance is to show a history of expanding opportunities for women, and Brown has done that," said Beverly E. Ledbetter, Brown's vice president and general counsel. "By the late 1970s, our women's program was more than twice as large as the average NCAA Division I program is today, but Judge Pettine dismissed that record because we accomplished our expansion too early. The percentage of Brown athletes who are women also has grown to 42 percent, but Judge Pettine discounted that growth because part of it was achieved by reductions in men's teams. With that kind of reasoning, Brown would be left with only one course of action to meet this test: to establish additional teams for women. Even if Brown added the few women's sports we do not already offer, achieving numerical parity would be impossible. Furthermore, the president has clearly stated that any additional University funds will be devoted exclusively to academic priorities. Given those academic priorities, athletics can grow only through increased team revenues such as gate receipts or gifts."
In addition to proportionality, the University's appeal includes the definition of "participation opportunity," the inappropriateness of numbers used in calculating participation, the ruling's definition of "program expansion," and the inappropriate weight the court gave to the constantly evolving rules and regulations of the U.S. Department of Education's Office of Civil Rights (OCR).
OCR's investigator's manual says there is no set measure for substantial proportionality. Expert testimony by plaintiffs' own witnesses said gender ratios that fall within two or three standard deviation units are to be considered substantially proportionate.
Recent admission statistics suggest that college-bound young women consider Brown to be a highly desirable school. Women have outnumbered men in Brown's recent classes, accounting for as much as 54 percent of new students. This year, Brown's undergraduate student body is more than 51 percent female. Next year, the percentage of women will certainly rise above 52 percent. According to Judge Pettine's concept of proportionality, Brown will need to provide additional teams for those new female students whether or not they are interested in intercollegiate athletic competition.
OCR's third prong asks "whether it can be demonstrated that the interests and abilities of the members of [the underrepresented] sex have been fully and effectively accommodated by the present program. By ignoring the interests and abilities of the student body as a whole, the ruling creates something tantamount to an affirmative action quota which discriminates against male athletes and grants preferential treatment to women.
"By assuming that all students are equally interested in participating in intercollegiate athletics, the ruling effectively prevents schools from equally accommodating the interests and abilities of the entire student body, as Title IX requires," Ledbetter said. "We do not believe this is in the best interests of higher education, and it certainly is not in the best interests of collegiate athletes."
In his opinion, Pettine found the various methods too complex and ruled that participation opportunities should be measured by counting the actual participants on intercollegiate teams. "The concept of any measure of unfilled but available athletic slots does not comport with reality," Pettine said.
"Judge Pettine is wrong to dismiss the University's statistical evidence so lightly, and he is being illogical when he suggests that participation opportunities and actual participants are one and the same," said Jeffrey Michaelson, one of the University's trial attorneys. "There are certainly at least nine participation opportunities available on a baseball team even if only six athletes try out."
Issues of recruiting were settled in an agreement early in the trial. Plaintiffs and their attorneys accepted the University's current recruiting program as fair and equal with respect to treatment of men's and women's teams. Most coaches also testified that they have adequate recruiting resources to support their teams. Furthermore, recruitment has more to do with the quality of a teams performance than with the number of participation opportunities afforded student athletes.
Better figures were available from the sworn testimony of men's and women's coaches given in court. For example, Mark Whipple, Brown's football coach, testified that his squad included approximately 80 players; Pettine included 126. Bob Gaudet, the men's hockey coach, listed 31; Pettine listed 41. Using numbers from the testimony of coaches, the figure for all varsity athletes is approximately 42 percent women.
Although Pettine excluded those teams from consideration under the first prong, he used them to demonstrate an unmet need under the third prong, saying that they have a long history of competitive schedules.
"The three-prong test looks only at whether athletes are competing at the intercollegiate level - not whether their teams are denominated as varsity or club and not at their level or source of funding," said Walter B. Connolly Jr., Brown's lead trial attorney. "Judge Pettine's opinion creates new distinctions and tests which are inconsistent with the previous guidance of the very agency which his analysis purports to follow. You can't have it both ways. If you are going to follow OCR guidance, you have to follow it all the way."
Ten years later, OCR dropped the specific language about meeting interests and abilities to the same degree and adopted the current "equally and effectively accommodates student interest and abilities."
The Javits Amendment was a clear expression of the intent of Congress that the nature of certain sports may be a legitimate reason why one team may be larger than another. It instructed the secretary of HEW to prepare and develop regulations that would make "reasonable provisions considering the nature of particular sports" - usually taken as a reference to football, which requires a very large squad size and has no corresponding sport available for women. In establishing its "substantial proportionality" rule, OCR ignored the fact that any school with a football team would have an automatic imbalance of nearly 100 males. "Many observers have said it is out of character for Brown to argue publicly with its students, and they wonder why the University continues to pursue the case," said Robert A. Reichley, executive vice president. "In fact, the University is defending its principles. It stands for genuine equality of opportunity, not preferential treatment. It resists challenges to its autonomy with regard to setting institutional priorities. And where it sees important higher education legislation subverted by contradictory and historically divergent regulations and interpretations, it works to set the matter right. Many Title IX issues in this case are being ruled on for the first time. We believe the current ruling is seriously flawed and must not be allowed to stand unchallenged."
###### 94/147 Related documents available from the Brown News Bureau 94/143 - Fact sheet on men's and women's varsity sports at Brown University 94/074 - Summary of national data about athletic interest 94/039 - Brown, Plaintiffs announce partial settlement 94/032 - Statement of the University's case at the start of the trial
Text of Partial Settlement Agreement University's post-trial memorandum University's brief on appeal