|
Volume 9 Numbers 2-3 SUPREME COURT LETS STAND SEX EQUITY IN SPORTS RULING
On April 21, 1997, the Supreme Court rejected Brown University's request for review of a ruling by the First U.S. Court of Appeals holding that the University had violated the rights of female athletes. The appeals panel had ruled that Title IX of the Education Amendments of 1972 requires an educational institution that receives federal funds to provide opportunities to participate in athletics proportionate to the school's enrollment of women and men or demonstrate that it is expanding its sports pro grams to accommodate the interests and abilities of all its students. This standard is consistent with U.S. Department of Education (DOE) regulations on the issue. Relevant to this case is DOE's so-called three part test for determining effective accomm odation of men and women in college sports:
1) whether sport participation opportunities are provided in numbers substantially proportionate to the sexs' respective enrollments; or
2) where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and a bilities of the members of that sex; or
3) where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
Background
In May 1991, Brown University demoted its women's gymnastics and volleyball teams from university-funded varsity status to donor-funded varsity status. At the same time, the university demoted two men's teams -- water polo and golf to the same lower s tatus. The demotions resulted in all four teams losing their university funding and most of the support and privileges that accompany university-funded status, and in the University saving $62,028 from the women's teams and $15,795 from the men's teams. Several women athletes filed a class action suit against the University on behalf of "all present, future, and potential Brown University women students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown."
The district court found that in 1993-94, Brown's varsity program -- including university- and donor-funded sports -- provided 200 more positions for men than for women, thus maintaining a 13.01 percent disparity between female participation in its spo rts programs and female enrollment. Further, Brown could not show that it was expanding its sports programs to be responsive to the unmet interests of its female students.
The district court entered final judgment on September 1, 1995 fashioning specific relief to avoid protracted litigation. The court required Brown "to elevate and maintain at university-funded varsity status the women's gymnastics, fencing, skiin g and water polo teams." Brown appealed the decision to the 1st Circuit Court of Appeals which affirmed the district court's finding that Brown violated Title IX in the operation of its intercollegiate athletics program. The appeals court however r emanded the case for reconsideration of the remedy, finding error in the district court's award of specific relief. The appeals court decision states:
"...Brown's proposal to cut men's teams is a permissible means of effectuating compliance with the statute. Thus, although we understand the district court's reasons for substituting its own specific relief under the circumstances at the time, an d although the district court's remedy is within the statutory margins and constitutional, we think that the district court was wrong to reject out-of-hand Brown's alternative plan to reduce the number of men's varsity teams. After all, the district cour t itself stated that one of the compliance options available to Brown under Title IX is to "demote or eliminate the requisite number of men's positions....Our respect for academic freedom and reluctance to interject ourselves into the conduct of universit y affairs counsels that we give universities as much freedom as possible to conduct their operations consonant with constitutional and statutory limits."
Other points of interest in the appeals court's decision include its' rejection of Brown's assertion that the District Court's misapplication of the three part-test "effectively renders Title IX an 'affirmative action statute' that mandates prefer ential treatment for women by imposing quotas in excess of women's relative interests and abilities in athletics." The appeals court, while recognizing that Title IX permits affirmative action, states that this is not an affirmative action case, tha t Title IX is an anti-discrimination statute and that no aspect of Title IX at issue in this case "mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals."
The opinion further challenges Brown's assertion that the district court's interpretation of the three-part test requires numerical proportionality. The appeals court opinion states that a violation of Title IX is not found solely because there is a d isparity between the gender composition of the student body and that of the athletic programs. The court asserts that the plaintiff must also show that an unmet interest is also present and the university must fail to provide "as an affirmative defe nse a history and continuing practice of program expansion responsive to the interests and abilities of the underrepresented gender." Only then will liability be established, the court concludes.
As to Brown's assertion that women are less interested in sports than men, the opinion reads:
"We view Brown's argument that women are less interested than men in participating in intercollegiate athletics, as well as its conclusion that institutions should be required to accommodate the interests and abilities of its female students only to the extent that it accommodates the abilities and interests of its male students, with great suspicion. To assert that title IX permits institutions to provide fewer athletic participation opportunities for women than for men, based upon the premise t hat women are less interested in sports than are men, is (among other things) to ignore the fact that Title IX was enacted in order to remedy discrimination that results from stereotyped notions of women's interests and abilities.
"Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. The [DOE] Policy Interpretation recognizes that women's lower rate of participation in athletics reflects women's historical lack of opport unities to participate in sports."
The appeals court also asserted that because the challenged classification is gender-based, it must be analyzed under the intermediate scrutiny test and not under the strict scrutiny test outlined by the Supreme Court in Adarand for racial class ifications. The appeals court concluded that the district court's remedial order passes constitutional muster.
  
|
