A Sporting Chance

By Linda J. P. Mahdesian '82 / September / October 1998
November 24th, 2007
Brown's six-year court battle over compliance with Title IX, the federal statute banning sex discrimination in higher education, appears to be finally over. On June 23, U.S. District Court Judge Ernest Torres gave preliminary approval to a formula for guaranteeing fair athletic participation rates for Brown women and funding for four contested women's teams.

"What this settlement does," says President E. Gordon Gee, who last spring asked the University's general counsel, Beverly Ledbetter, to negotiate a settlement with the plaintiffs, "is clarify Brown's position both internally and externally, so we can move ahead with what we need to do with our athletic program."

The agreement requires Brown to maintain all current University-funded teams and to underwrite certain donor-funded women's teams for a period of at least three years. It also sets specific numbers for compliance with the law, providing a strong incentive for keeping the ratio what it is today.

Specifically, Brown agreed to elevate women's water polo from club to donor-funded varsity status and to guarantee funding for the four women's teams - gymnastics, fencing, skiing, and water polo - that the Court had earlier determined to be inadequately supported. The University must also guarantee that its rate of women's intercollegiate athletic participation is within 3.5 percent of the women's undergraduate enrollment rate.

The margin for straying from the percentage of women making up the student body narrows if Brown changes its teams in a way that threatens the women's participation rate. Should the University eliminate or downgrade a women's team, for example, or should it add or upgrade a men's team without a corresponding change in a women's team, Brown must move the participation rate to within 2.25 percent of the women's enrollment rate, a potent disincentive for making the changes.

According to Ledbetter, the settlement allows the University to prevail on an important principle it had argued unsuccessfully in court: that the judicial system has no place micromanaging Brown's athletic programs. The agreement allows the University to meet the percentage requirements with its own - rather than a court-approved - compliance plan. Brown, she says, has once more "gained the autonomy to determine the make-up of its teams."

"I felt the case had gone on for a sufficient amount of time," Gee says of his decision to settle as soon as possible after becoming president. "Any further discussion would only leave us in an ambiguous position. We know the problems, the issues, the answers. We just need the process to move back into the University and not be controlled from the outside."

Gee's determination to put the case behind the University drew praise from Lynette Labinger, lead counsel for Trial Lawyers for Public Justice (TLPJ), which represented the plaintiffs, who are former Brown women athletes. "We are especially pleased," she says, "that we obtained increased opportunities and funding for women without sacrificing opportunities or funding for men. That was one of our goals from the start."

A final hearing on the settlement is scheduled for October 8. Once approved, it will clear the way to resolve the final matter of costs and attorneys' fees. TLPJ's costs will easily exceed $1 million, according to Labinger, and Brown's spending on the case will most likely exceed $1 million as well. If the University is required to pay all court costs, its total bill for the case will be in excess of $2 million.

In Gee's view, however, the Title IX dispute has cost Brown more than money. "I think that ultimately we lost in the courts, but also in the court of public opinion," he says. "By that I mean that, as I have become the Brown president, I have found that there have been few institutions more committed to women's issues and to women's issues in sports. Somehow that message got garbled and misunderstood. So as you sit in Iowa, you think of Brown and you think that we are not as attentive to women's sports as we should be. The problem was that we lost control of the message."

According to Kimberly Schuld, director of the Play Fair! project of the Washington-based Independent Women's Forum, the court case has clear national implications - not all of them for the better. The Title IX enforcement policy that the Brown case reinforces, she argues, requires male and female sports participation levels based on their enrollment ratios, regardless of the level of interest - or lack of interest - men and women may actually have for playing sports. "Colleges, universities, and high schools," she concludes, "are increasingly being presented with the choice of forcing up the number of women who play sports or cutting the number of men who compete."

Regardless of the case's repercussions elsewhere, however, TLPJ Executive Director Arthur Bryant, who negotiated the settlement for the plaintiffs, says that the most important result is that "women at Brown are finally going to get the intercollegiate athletic opportunities and treatment that they deserve."

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September / October 1998