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Distributed June 27, 1995 (See other documents linked to Title IX Chronology)
Contact: Richard Morin

ACE, AAU, others file friend-of-the-court briefs

Brown University Appeal Brief Says Title IX Ruling Imposes Quotas

Joined by several prominent higher education organizations representing over 1,700 colleges and universities nationwide, attorneys for Brown University today filed with the First Circuit Court of Appeals in Boston the University's brief contesting a recent U.S. District Court decision that Brown violates the regulations governing Title IX. The ruling, which the University's brief said creates "athletic quotas," was handed down March 29 by U.S. District Court Senior Judge Raymond Pettine. Citing errors of fact, misinterpretations of law and omissions of evidence, attorneys for Brown have requested that the First Circuit Court of Appeals reverse the lower court's ruling or order a new trial.

Three friend-of-the-court briefs were also filed today in support of Brown's appeal by: (1) the American Council on Education (ACE), the Association of American Universities (AAU) and the National Association of Independent Colleges and Universities (NAICU); (2) a diverse group of more than a dozen colleges and universities representing both large and small, private, public and religious institutions encompassing eight athletic conferences; and (3) several collegiate coaching organizations representing men's non-revenue sports.

The lower court's ruling held that Brown is in violation of a three-prong standard established by the U.S. Department of Education's Office of Civil Rights (OCR) to help determine whether institutions comply with Title IX regulations. Judge Pettine ruled that Brown violates Title IX primarily because the percentage of athletes who are female does not "mirror" the percentage of females in the undergraduate student body (51-52 percent).

"Brown University is committed to the fundamental principle that all students should have an equal opportunity to pursue their interests and abilities in all University-sponsored activities," said Robert A. Reichley, executive vice president (alumni, external and public affairs). "Judge Pettine's ruling, if it stands, would force Brown to limit the number of opportunities for male athletes to compete because existing opportunities for women are going unfilled. That's a quota system; we don't believe that's what Congress intended."

The ruling counts actual participation, instead of participation opportunities, and then compounds its error by relying on numbers that distort the actual participation rates of student athletes at Brown. The court ignores unrebutted and uncontradicted evidence showing that substantial differences exist between the levels of intercollegiate athletic interest demonstrated by male and female students.

Equality of treatment is not an issue in the case. Plaintiffs' lawyers have said that Brown's athletic programs for men and women are a "model for the nation." They have also said that the University treats its men's and women's teams fairly and without discrimination. In fact 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.

Editors: A copy of the University's 50-page brief and addendum is available by request from the News Bureau.

The University's appeal brief cites many errors of fact and law in the lower court's ruling, including:

"Brown has had and continues to have one of the leading athletic programs in the nation in terms of the number of teams and opportunities for athletic participation for both men and women," Reichley said. "We have appealed this ruling because we want to clarify the intent of Congress, particularly in the interest of the nation's female students who in the long run may be hurt by a misapplication of Title IX."

Pursuant to a court order issued by Judge Pettine, the University is scheduled to present a compliance plan to the lower court one week from today. That plan will describe a series of steps the University could take in order to comply with the ruling it is disputing in the appeal brief which was filed today.

Friend-of-the-Court Briefs

A joint friend-of-the-court brief was today filed by the American Council on Education, a national organization representing 1,700 higher education institutions, the Association of American Universities, with 60 members representing the top research universities, and the National Association of Independent Colleges and Universities, with 840 member schools. The brief asserts: Brown was also joined in filing today by broad-based group of colleges and universities subject to Title IX. A sampling of these schools include: Baylor University, Boston University, Brigham Young University, Colgate University, College of the Holy Cross, Colorado State University, Fairfield University, George Washington University, Johns Hopkins University, LaFayette College, New York University, St. Peter's College, Southern Methodist University, Tulane University, University of Arkansas, University of Nebraska, University of Notre Dame, and Wake Forest University.

The group's friend-of-the-court brief states:

The American Baseball Coaches Association, the American Swimming Coaches Association, the National Association of Collegiate Gymnastic Coaches and the National Wrestling Coaching Association joined in filing a friend-of-the-court brief today as well. Their brief makes the following points: