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Distributed September 23, 1994 (See other documents linked to Title IX Chronology)
Contact: Mark Nickel

In Court: Varsity Athletics for Women

Brown Is Prepared To Prove Full Compliance With All Title IX Provisions

PROVIDENCE, RI - Officials at Brown University are ready to demonstrate the full compliance of the University's women's varsity program and to disprove allegations of sexual discrimination in athletics, as a precedent-setting Title IX case moves to trial Monday, Sept. 26.

"Brown University believes its program of women's varsity sports is in full compliance with the spirit and letter of Title IX, and we are eager to demonstrate that fact in court," said Robert A. Reichley, executive vice president (alumni, public affairs and external relations). "Brown has a powerful story to tell. Few colleges or universities can match the number and variety of varsity teams we offer, and women athletes at Brown take advantage of those varsity opportunities at rates that are triple the national average."

Women athletes at Brown do well in the record books, too. That, Reichley said, is testimony to the University's full commitment to its program of women's varsity sports and an indication that athletically talented young women view Brown as an excellent opportunity for competition.

Control of University Programs

The case stems from a Universitywide budget-cutting move in the spring of 1991. Faced with a potential $1.6-million deficit, University President Vartan Gregorian declared an immediate hiring freeze and directed that all departments across the University should cut their budgets. Only the budgets for student scholarships and library acquisitions were exempt.

As part of its budget-cutting goal, the Department of Athletics and Physical Education withdrew funding from two men's and two women's varsity teams. Those teams continued to play a full varsity schedule and remained eligible for NCAA post-season play, but were asked to raise their operating funds through the Brown University Sports Foundation. Athletes affected by the change were 60 percent male, 40 percent female, approximately the same ratio of men to women as in the entire varsity athletic program then. Brown successfully avoided the deficit.

"The 1990s have been very difficult financially for colleges and universities," said Brown President Vartan Gregorian. "The economic climate has been volatile. In order to assure the quality and continuity of essential academic programs, institutions need to move quickly and they must have control over the size and scope of their programs. If academic departments and administrative offices are asked to cut back, athletics cannot be exempt." The University's ability to manage its programs and budgets is an important issue in the Title IX case.

Interests and abilities

Brown's attorneys stress that Title IX requires an institution to provide "equal athletic opportunity" when the program is considered as a whole. In meeting that standard, according to the Office of Civil Rights (OCR), "the governing principle ... is that the athletic interest and abilities of male and female students be equally and effectively accommodated."

One of the best-known tests for an institution's compliance with Title IX is the so-called "three-prong test" used by the OCR, which enforces Title IX for the Department of Education. The OCR looks at:

1) Relative participation rates of men and women in varsity athletics compared to the ratio of men to women in the undergraduate student body;

2) An institution's history of program expansion for members of the underrepresented sex;

3) The extent to which the interests and abilities of the underrepresented sex are being accommodated.

"We will introduce a number of different studies to show that Brown's program offers opportunities in excess of women's stated interest and ability," said Walter B. Connolly Jr., a member of Brown's legal team. "We will do much more than meet the third prong of the test. We will show that Brown's extraordinary program of varsity sports for women meets all three prongs of the compliance test used by the Office of Civil Rights."

To demonstrate that Brown's program meets the "interests and abilities" of students, attorneys for the University will cite several analyses ranging from student expression of interest during admission to Brown, to statistics from takers of SAT tests, to an analysis of sports participation among high schools from which Brown students have graduated. Under each analysis, the results demonstrate that Brown funds varsity participation opportunities in excess of the relative interest and ability of women students compared to men. (The female-to-male varsity participation ratio at Brown, for example, is seven percentage points better than the ratio in high schools.)

"Title IX does not require strict proportionality in participation rates, nor does it require equal per capita spending, nor does it require institutions to provide opportunities in any given sport," said Beverly E. Ledbetter, vice president and general counsel for Brown. "Our program equally and effectively accommodates the athletic interests and abilities of Brown students and is in full compliance with the provisions of Title IX."

Participation Opportunities

Brown's program also offers far more participation opportunities than nearly all other colleges and universities in the country:


The "second prong" of the OCR test asks whether a school can demonstrate expansion of programs for women athletes. "Before federal regulations required it, Brown was at work building and expanding its program of women's athletics," Reichley said. "Brown was fortunate years ago to have had an enlightened athletic director, Andy Geiger, who foresaw the evolution of women's sports. This was around the time when Brown and Pembroke College merged, creating a fully coeducational institution."

Most of Brown's progress came during the 1970s, Reichley said. Even though those were years of severe financial difficulty, the University demonstrated its determination to improve and expand its varsity program for women. In fact, by the early 1980s, Brown's program had reached a size and variety that exceeds even today's NCAA averages.

"It is truly perplexing that anyone would use Title IX to, in effect, penalize Brown for its early vision and explosive growth," Reichley said. "Should Brown have postponed the growth of its women's athletic program and parceled out progress in smaller, regular amounts just to meet a test of continual expansion? That cannot be what Congress intended."

While the number of men's and women's varsity teams has remained relatively constant in recent years, the participation rates of women athletes at Brown has steadily improved. Participation rates for women have grown steadily for the last eight years at Brown. In 1986-87, women accounted for 34 percent of all Brown varsity athletes. Eight years later, the figure has risen to 45 percent - a 12-point increase in participation.


The Department of Education's final regulations for Title IX also consider a variety of factors including provision of equipment and supplies, scheduling of games and practice times, medical and training facilities, practice and competition facilities, among others. All factors must be considered in determining whether an institution provides equal athletic opportunity overall.

Brown will demonstrate that its overall program is fully in compliance with provisions of Title IX. Any perceived differences between men's and women's programs are due either to the preferences of coaches in designing their programs or to requirements set down by the NCAA or Ivy League with respect to rules for competition, length of season and so forth. There are no programwide inequalities due to discrimination against men's or women's teams.

The Case to Date

In the spring of 1991, Brown was facing a double-edged budget dilemma. Unless it took some dramatic steps, the University would finish the year with a $1.6-million deficit. Worse, a structural problem in the University's budget virtually guaranteed that deficits would be a recurring problem. Brown needed to downsize.

President Gregorian announced an immediate moratorium on new hiring and directed that all departments throughout the University would cut their budgets to stave off the deficit. (There would be only two exceptions: The financial aid budget and the library acquisitions budget were exempt from cuts.)

April 29, 1991

To help produce its share of savings, the athletic department withdrew funding from four varsity teams: men's water polo and golf, women's gymnastics and volleyball. The teams continued to compete at the intercollegiate varsity level and remained eligible for post-season tournament play, but had to raise their own funds.

The cuts affected approximately 60 athletes in roughly the same male-to-female ratio as for all Brown varsity athletes at the time: 60-40. The University continued to honor existing contracts for coaches of the teams.

April 9, 1992

Approximately a year later, certain members of the two women's teams filed suit alleging sexual discrimination and violation of Title IX, a federal law that prohibits discrimination based on gender at any educational institutions that receive federal funds. The women were represented by Trial Lawyers for Public Justice, an advocacy group in Washington, D.C.

July 15, 1992

Attorneys for the plaintiffs asked for a preliminary injunction that would force Brown to reinstate funding for the two women's teams and refrain from any further cuts in women's sports until the case could be heard on its merits. Arguments were presented before Judge Pettine between Oct. 26 and Nov. 16.

Dec. 22, 1992

Pettine granted the preliminary injuction, requiring Brown to reinstate full varsity funding and support. The University immediately appealed and sought a stay of that injunction. On Dec. 30, the U.S. Court of Appeals for the First Circuit granted a temporary stay; Brown did not have to reinstate funding until the appeal could be heard.

Feb. 4, 1993

Attorneys for both sides argued the appeal in Boston.

April 15, 1993

The Appeals Court upheld the lower court, the stay was lifted, and Brown restored funding for the teams in the 1993-94 season.