Brown University News Bureau

The Brown University News Bureau

1996-1997 index

Distributed April 2, 1997
Contact: Mark Nickel

Cohen v. Brown

Nine amicus curiae briefs support Brown's Title IX Supreme Court appeal

Nine friend-of-the-court briefs have been filed in support of Brown University, asking the U.S. Supreme Court to hear Brown's appeal in the Title IX athletics case. The briefs represent a range of views, from 49 members of Congress to a former cabinet secretary to national educational associations and athletic and coaching organizations.

PROVIDENCE, R.I. -- Groups and individuals with a stake in how Title IX legislation applies to college sports are urging the U.S. Supreme Court to hear Brown University's appeal in its landmark Title IX case.

Nine friend-of-the-court briefs supporting Brown's position are now before the Court, representing the views of 49 members of Congress; the former cabinet secretary who presided over development of Title IX regulations; nearly a dozen national coaching and athletic organizations; 60 individual colleges and universities; and five national organizations representing more than 3,000 institutions of higher education.

"The nine amicus briefs filed in this case show how broadly Title IX affects the nation's colleges and universities and how urgent these issues are to higher education," said Laura Freid, executive vice president for external affairs. "Brown firmly supports the spirit and letter of Title IX. We are appealing this case so that the nation's colleges and universities may have clear guidance that is consistent with the original Title IX statute."

The following briefs have been filed with the U.S. Supreme Court. (Editors: Text of the briefs is available from the Brown News Bureau.)

Five National Higher Education Associations

The five associations (American Council on Education, American Association of State Colleges and Universities, Association of American Universities, National Association of Independent Colleges and Universities, and National Association of State Universities and Land-Grant Colleges) argue that the compliance test endorsed by the First Circuit Court of Appeals is irreconcilable with the Title IX statute as well as with regulations and administrative interpretations. Further, the test imposes insurmountable burdens on colleges and universities and may lead to the very gender-based discrimination that Title IX expressly forbids.

Caspar W. Weinberger, Former Secretary of HEW

Caspar Weinberger was secretary of the Department of Health, Education and Welfare during the period when HEW developed and published implementing regulations for Title IX. The First Circuit's decision in Brown's case is squarely at odds with those regulations as well as with HEW's stated position at the time of their release, according to the brief. The lower court's test would prevent schools from providing athletic opportunities on the basis of actual student interest; rather, it would force them to allocate opportunities so as to equalize participation rates for men and women. The lower court's test will harm hundreds of colleges and thousands of students. Furthermore, the enormous cost of litigation will make capitulation the only feasible course of action for most schools if the lower court's test is allowed to stand.

Forty-Nine Members of Congress

U.S. Rep. Dennis Hastert (R-Ill.), together with 47 House colleagues and Sen. Phil Gramm (R-Texas) ask the Court to take this opportunity to settle a number of questions that have arisen around Title IX: Deference: The lower court's declaration that proportionality is a "safe harbor" is not based on the Title IX statute, nor on the expressed intent of Congress, nor on fully promulgated regulations, but on enforcement policies of an administrative agency. Greater deference should be given to the statute and regulations. Title VII: The amici urge the Court to decide whether findings related to employment discrimination are analogous and applicable in Title IX cases. Equity: The Court should clarify whether the current proportionality standard constitutes a gender-based preference and, if so, whether such a preference is permissible.

Three Equal-Opportunity Advocacy Groups

The Washington Legal Foundation, The Independent Women's Forum, and the Allied Educational Foundation believe the current standard as set forth by the District Court and supported by the First Circuit is wrong as a matter of law and incorrect as a matter of public policy. The numerical limits imposed by that standard seek to achieve a proportional representation that does not take interests and abilities into account. Ultimately, the standard could undermine opportunities for women and could harm varsity opportunities for both male and female athletes at virtually every university in the nation.

Sixty Individual Colleges and Universities

Sixty colleges and universities, representing a broad spectrum of private (Brandeis, Clark, Emory, John Hopkins), religious (Baylor, Brigham Young, Southern Methodist, Notre Dame) and state schools (Oklahoma State, the University of Texas System, universities of Illinois, Missouri, Nebraska, Pennsylvania) say that the lower court's decision in Brown's case is contrary to and conflicts with decisions of the U.S. Supreme Court. Further, they assert that the issues raised in the case are of exceptional importance and have far-reaching consequences for institutions, which require time to design and build athletic programs, and for student athletes, whose college careers span only a few years. Because lower courts recognize the short career span of college athletes, they are more likely to grant preliminary injunctions. As a practical matter, these preliminary hearings may constitute "the whole ball game," which is what occurred in the Brown case.

Three National Athletic Associations

USA Wrestling Inc., United States Swimming Inc., and United States Water Polo Inc. are three not-for-profit corporations recognized by the United States Olympic Committee as national governing bodies in their sports. They assert that the lower court's ruling would hamper their ability to identify and encourage the nation's elite athletes for various international competitions, including the Olympic Games. Further, by effectively requiring colleges and universities to provide gender-based preferences, the lower court's ruling would compromise the activities of these governing bodies, which are forbidden by law to favor any group of athletes to the detriment of another.

Six National Coaching and Athletic Associations

Six national coaching and athletic associations representing baseball, gymnastics, swimming, wrestling, lacrosse and water polo argue that Title IX was drafted to advance the principle of equal opportunity between men and women without preferential treatment for either. The Policy Interpretation devised by the Department of Education "represents a radical repudiation of Congress's original program. The obstacles it imposes on male athletes is in clear violation of the basic principle of equal opportunity that each person should count for one and only for one. From behind the fig-leaf of `underrepresented sex,' the Policy Interpretation engages in the very form of preferential treatment that Title IX itself prohibits."

The State of Colorado

In 1992, Colorado State University discontinued its men's baseball program and women's softball program - one team for each gender but adversely affecting three times as many male athletes as female. The Tenth Circuit Court of Appeals ordered the women's program reinstated. In that case, as in Brown's, Colorado argues, the court's interpretation of Title IX requires preferential treatment on the basis of gender in violation of the Fourteenth Amendment. The First Circuit's interpretation in Brown's case imposes a quota, which also violates the Fourteenth Amendment. The Constitution, Colorado argues, does not tolerate different treatment on the basis of gender, nor does it tolerate quotas. By agreeing to hear this case, the Supreme Court would have an opportunity to reinterpret Title IX so that it is consistent with the Fourteenth Amendment.

The College Football Association

The College Football Association has 69 members, including all participants in the Atlantic Coast Conference, the Big East Conference, the Big 12 Conference, Conference USA, the Southeastern Conference and the Western Athletic Conference, as well as independent schools like Notre Dame and the military academies. Title IX implementing regulations require universities to take the nature of particular sports into account when they design programs to accommodate the athletic abilities of men and women equally effectively. This is particularly important for football, which requires large numbers of male players and has no equivalent for women. Title IX does not mandate the numerical proportionality that the lower court requires. Equal opportunity to participate is to be assessed not in a rote numerical fashion, the brief says, but in a common sense fashion that takes the nature of the sport into consideration.


Related documents available from the News Bureau by fax or online:

96-085    Brown files petition for writ of certiorari with U.S. Supreme Court, Feb. 18, 1997. (Includes link to text of the petition.)
96-050    Split decision of the First Circuit reverses lower court's proposed remedy, upholds Brown's autonomy in designing its athletic program, Nov. 21, 1996. (Includes links to text of the opinion and the dissent.)
95-121Brown prepares to argue its appeal. Women now account for 48 percent of varsity athletes, March 29, 1996.
95-012President Vartan Gregorian's statement upon Judge Pettine's rejection of the University's compliance plan, Aug. 18, 1995.
94-198Brown files notice of appeal with First Circuit. Three organizations, representing nearly 2,000 colleges and universities file friend-of-the-court briefs supporting Brown, June 26, 1995.
94-137University statement on opinion issued by District Court Senior Judge Raymond Pettine, March 29, 1995.
94-074Statistics on interest and ability presented in court, Dec. 5, 1994.
94-039Attorneys for both sides agree to partial settlement, Sept. 30, 1994.
94-032University's statement at start of Title IX trial, Sept. 23, 1994.