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Distributed July 7, 1995 (See other documents linked to Title IX Chronology)
Contact: Mark Nickel

Title IX athletics discrimination case

Brown submits plan to reach proportionality as defined by District Court

PROVIDENCE -- Brown University today is filing a plan it believes will satisfy the requirements of a recent District Court ruling in a Title IX athletics discrimination case. The University's plan is designed to increase the percentage of athletes who are women by establishing minimum squad sizes, providing for additional participation by women in existing sports, and placing limits on athletic opportunities for men.

The March 29 ruling, by U.S. District Court Senior Judge Raymond Pettine, held that Brown did not meet Title IX requirements primarily because the percentage of its athletes who are women (38 percent, according to the court) did not "substantially mirror" the percentage of women in the undergraduate student body (about 51 percent). Brown disputes the court's definition of opportunities, use of numbers and reading of the law and is pressing its case at the First Circuit Court of Appeals in Boston.

"It is ironic and even a bit tragic that in order to make our athletic numbers conform to a simple mandated quota, we must eliminate more than 40 opportunities for men at a time when most women's teams at Brown have room for additional players," said Robert A. Reichley, executive vice president. "Brown believes that any interested student who is able to compete in intercollegiate-level athletics should have an equal opportunity to do so. The plan we have submitted, however, discounts the athletic interests and abilities of our students. Rather than providing equal athletic opportunities to all students who are interested in intercollegiate competition, we are forced to construct a program which sacrifices equal opportunity in favor of strict proportionality."

Under Brown's current program, women can play on 18 intercollegiate varsity teams - more than twice the national average for NCAA Division I institutions. Even though women at Brown participate in intercollegiate athletics at three times the national rate, Brown's current program can still accommodate dozens of additional women athletes. Brown's proposed plan, which applies only to University-funded intercollegiate teams, outlines three steps toward achieving Pettine's requirement that gender ratios between men and women athletes must "mirror" those of the undergraduate student body:

In the space of one academic year, if approved by the District Court, these three measures should produce an athletic program in which women account for at least 49.2 percent of athletes. The actual percentage of women would be somewhat higher if women athletes participate at better than minimum levels. Although the exact gender makeup of the undergraduate student body will not be known until the Class of 1999 matriculates this fall, the University anticipates that women will account for about 52 percent of undergraduates.

By mirroring the percentage of women in the undergraduate student body, Brown's athletic program will have met the court's interpretation of first prong in the three-prong administrative test used to determine Title IX compliance. Pettine has described that test as the most stringent.

Intercollegiate Participation Opportunities Under Brown's Proposed Plan

(All numbers represent squad size as of the date of first competition)
       Women                                    Men
1994-95 Proposed University-Funded 1994-95 Proposed 1st Day Minimum Intercollegiate Teams 1st Day Maximum

12 15 Basketball 16 16 - 12 J.V. Basketball (No Team) (No Team) 45 48 Crew 50 46 15 22 Ice Hockey 31 33 10 10 Tennis 13 10 - 10 J.V. Tennis (No Team) (No Team) 22 27 Lacrosse 45 39 - 18 J.V. Lacrosse (No Team) (No Team) 15 18 Softball/Baseball 27 26 25 26 Soccer 27 26 - 24 J.V. Soccer (No Team) (No Team) 20 24 Swimming 14 18 9 18 Volleyball (No Team) (No Team) 15 16 Squash (No Team) (No Team) 29 25 Field Hockey (No Team) (No Team) - 11 J.V. Field Hockey * (No Team) (No Team) 39 40 Outdoor Track 49 40 37 40 Indoor Track 54 40 13 20 Cross Country 25 20 (No Team) (No Team) Wrestling 25 24 (No Team) (No Team) Football 90 66 (No Team) (No Team) J.V. Football * - 33

306 424 (49.2%) TOTAL 466 437 (50.8%)

* Members of the field hockey and football teams have played junior varsity matches in previous seasons. This plan makes those junior varsity teams an explicit part of their programs.

"For years, student athletes, coaches, faculty and administrators have talked about the benefits of competition - teamwork, leadership, self-confidence, the drive to work hard," said David Roach, director of athletics. "If that is true, why must we tell athletes on existing teams that they can no longer attend practice simply because their presence will throw the University's numbers out of whack? I find it unfortunate and deeply disappointing, but that is what happens when proportionality becomes the yardstick for Title IX compliance."

Phase two

The University has said it will not establish any additional University-funded intercollegiate teams for men or women. This is consistent with its existing policy that all new discretionary funding must be devoted to academic priorities and that any growth in the athletic program must come from additional donor support. Any new intercollegiate teams would be donor-funded, thus not part of this compliance plan, and would have to meet the University's own criteria for certification as donor-funded varsity, which include funding sufficient to support the team for five seasons.

If the District Court determines that the combination of capping men's teams, creating women's junior varsity squads on existing teams and enforcing minimum squad sizes will not achieve the mirroring of gender ratios required by its ruling, the University's plan requires the elimination of one or more University-funded men's teams. That team would be chosen at a later date.

"That is a step we and the plaintiffs hope to avoid at all costs," Reichley said. "We believe the limits we have placed on men's teams, coupled with increased participation by women, will meet the District Court's requirements of March 29."

Editors: Copies of the plan are available from the Brown News Bureau.

Implementing the plan

The figures for minimum squad sizes are the result of several factors. Generally, they allow for 2.5 to 3 times the number of players who compete at any one time, thus permitting teams to conduct intrasquad scrimmages. Other factors include a team's historical size, the Ivy League's permissible travel squad size and characteristics of individual sports. For individual competitions (e.g., tennis, fencing), the minimum size is based on historical factors and the typical number of individual competitions in a meet.

Athletic Director David Roach will inform all head coaches about the minimum number of players they must carry on their squads. No coach will be allowed to cut any athletes who try out for a given team if the squad has not reached its minimum size. Any University-funded varsity team that fails to reach its minimum squad size for three consecutive seasons will be changed to donor-funded status.

In addition, head coaches of men's teams will be required to submit rosters that do not go above stipulated maximum team sizes. If members leave the team during the season for any reason, teams will not be allowed to add players unless the squad size falls below the minimum.

If the plan is accepted by the District Court, attorneys for the University will seek a stay of its implementation until the appeal has been considered. The First Circuit Court of Appeals has notified parties that the case may be ready for argument at its coming October 1995 session.

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Related documents available from the Brown News Bureau

94-198 - University's appeal brief filed 94-147 - University files notice of appeal with the First Circuit Court of Appeals 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

University's brief on appeal University's post-trial memorandum Text of Partial Settlement Agreement