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Brown files appeal brief in Title IX athletics discrimination case
PROVIDENCE, R.I. -- Brown University, supported by friend-of-the-court briefs from associations representing more than 2,000 colleges and universities, as well as from women's and athletic interest groups, has filed its brief with the U.S. First Circuit Court of Appeals in Boston. The University is asking the federal appeals court to reverse a March 29 ruling by U.S. District Senior Judge Raymond Pettine in a landmark Title IX discrimination case and to enter a judgment in the University's favor.
Editors: Copies of the University's brief and the four amici briefs are available from the Brown News Bureau.
"The lower court's ruling was replete with factual, legal and evidentiary errors and should not be allowed to stand," said Beverly E. Ledbetter, Brown's vice president and general counsel. "In addition to the injustice done to Brown, which is among the nation's leaders in women's athletics, the ruling diminishes a significant piece of legislation enacted by Congress to eliminate gender-based discrimination in higher education. If allowed to stand, the ruling would effectively turn Title IX on its head, by requiring colleges and universities to engage in the very gender-based discrimination the original statute sought to eradicate."
In its 65-page brief, the University outlined dozens of errors made by the lower court and reiterated its charge that the lower court's ruling misinterprets the Title IX statute and misapplies a three-prong government test of Title IX compliance.
Title IX requires colleges and universities to equally and effectively accommodate the interests and abilities of their students in all programs, including athletics. Brown argues that its program is non-discriminatory and that differing participation levels for male and female athletes are due to differing levels of interest and are not the result of discrimination.
The first prong of the government's three-part compliance test, as misapplied by the court, does not measure whether a school is giving male and female athletes equal competition opportunity as Title IX requires. Rather, the court expressly ignored student interest and ruled that Brown was not in compliance because its ratio of male and female athletes did not mirror the gender ratio of the overall student body. That application of the test violates the spirit and intent of Title IX, according to Brown.
The second prong asks whether an institution can demonstrate a history and continuing practice of program expansion for the underrepresented gender. The court ruled that Brown's exemplary history of expanding women's athletic opportunities did not satisfy this requirement, because it occurred early and all at once (see chart). The court also incorrectly discounted the fact that the representation of women among varsity athletes has risen 25 percent in eight years, according to Brown's brief, because some of that increase came at the expense of men's teams.
The third prong asks whether an institution fully accommodates the athletic interests of the underrepresented gender. Again, according to Brown's brief, the lower court completely ignores the unmet interests among male athletes and attempts to grant women an advantage. To satisfy the court's reading of the third prong, Brown would have to discriminate on the basis of gender, a practice Title IX expressly forbids.
"There are two possibilities here," Ledbetter said. "Either the lower court has applied the three-part test incorrectly or the test itself violates both the Title IX statute and the U.S. Constitution. In either case, a finding of discrimination against Brown was unwarranted."
Organizations supporting Brown's position joined forces to file four amicus curiae briefs in the University's behalf.
National Educational Associations. The most broadly based brief was filed jointly by the American Council on Education (ACE, representing approximately 1,700 institutions of higher education), the Association of American Universities (AAU, representing 60 public and independent universities), the National Association of Independent Colleges and Universities (NAICU, representing more than 840 institutions), and the National Association of State Universities and Land-Grant Colleges. In that brief, the organizations supported Brown's contention that Title IX requires colleges and universities to consider the interests and abilities of all students and that the test as applied by the court is irreconcilable with Title IX and its regulations.
Colleges and Universities. Seventeen separate institutions of higher education  joined in a brief to underscore the point that Title IX requires athletic programs to meet the interests and abilities of students. If men and women demonstrate different levels of interest in intercollegiate varsity competition, then a truly non-discriminatory program would likely have more men than women. If the gender ratio of the student body is to be the standard, then the lower court's opinion would require Brown to distribute 50 percent of varsity opportunities to 38 percent of potential varsity athletes - a distribution that would amount to gender-based discrimination. The lower court's enrollment standard would lead to outrageous results under Title VI, the racial non-discrimination statute upon which Title IX is based, according to the brief.
Athletic Organizations. Four national athletic organizations  joined in a brief to express their concern that the misapplication of the three-part compliance test would lead to micromanagement of college athletics programs on the part of the court. Not only did the court fail to distinguish between "participation opportunities" and "actual participants," the court used inaccurate and inappropriate statistics in analyzing compliance. According to the brief, the lower court also misconstrued the second prong in ways that would discourage schools from rapidly expanding athletic opportunities for women, and it misinterpreted the third prong in such a way as to violate Title IX's own prohibition of quotas.
The Independent Women's Forum. The Independent Women's Forum (IWF), a non-partisan women's organization based in Washington, D.C., filed a brief concerned with the scope of compliance with Title IX. The lower court was wrong to use the gender ratio of the entire undergraduate student body as the test of Brown's compliance the IWF said. "Determination of whether discrimination exists requires an analysis of the qualified pool of students - that is, the pool of students with the interest and ability to participate in varsity athletics - and requires a comparison between the gender ratio within that pool and the gender ratio of participation opportunities the institution provides," the IWF brief said.
The IWF cautioned that while the lower court's ruling may appear to benefit women in this case, its application across the board could well have damaging consequences for women in a variety of areas. It is student interests and abilities - not simple enrollment data - that must be the starting point, the IWF brief said. "The entire statutory and regulatory structure of Title IX emphatically demonstrated that student interest and ability is the starting point for any analysis of discrimination in intercollegiate athletics under Title IX. The District Court started in the wrong place; it necessarily reached the wrong result."
In filing its brief, Brown is resuming an appeal process it had begun in the spring. An earlier appeal, which was to have been heard in the First Circuit's October session, was dismissed. At the time, the appellate court determined that the lower court's ruling was not final because it did not provide for a remedy. On Aug. 18, Judge Pettine rejected a compliance plan Brown had submitted and ordered the University to fund four women's teams at the full varsity level. Pettine stayed that order pending Brown's appeal, and the University immediately resumed its appeal to Boston.
 American Baseball Coaches Association, College Swim Coaches Association of America (men and women), National Association of College Gymnastics Coaches (men), and the National Wrestling Coaches Association.
###### 95-070 Related documents available from the Brown News Bureau 95-012 - President's statement on rejection of University's plan 95-001 - Brown files its compliance plan in U.S. District Court 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 Four amici curiae briefs