The Title IX Tug-of-War and Intercollegiate Athletics in the 1990's: Nonrevenue Men's Teams Join Women Athletes in the Scramble for Survival

Indiana Law Journal

Volumn 71, Issue 3, 1996, Pages 773-814

  Shook, Susan M ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b PURDUE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0030551492     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (270)

1. GARY NYGARD & THOMAS H. BOONE, LAW FOR PHYSICAL EDUCATORS AND COACHES 280 (2d ed. 1989).
2. Id. at 280-81 (citing the reasons for the Conference of College Directors of Physical Education's disapproval of women's intercollegiate sports in the 1920's: "(1) [i]t leads to professionalism; (2) [t]raining of a few to the sacrifice of many; (3) [i]t is unsocial; (4) [n]ecessity of professional coaches; (5) [p]hysical educators, both men and women, of [the] leading colleges find results undesirable; (6) [e]xpense; and (7) [u]nnecessary travel fatigue").
3. Id. at 281.
4. Joan O'Brien, The Unlevel Playing Field, SALT LAKE TRIB., Sept. 4, 1994, at A1.
5. See, e.g., Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir.) (noting Colorado State University's addition of 11 intercollegiate women's sports during the 1970's), cert. denied, 114 S. Ct. 580 (1993).
6. See infra note 61 and accompanying text.
7. Education Amendments of 1972, Pub. L. No. 92-318, §§ 901-907, 86 Stat. 235, 373-75 (1972) (codified at 20 U.S.C. §§ 1681-1688 (1994)). Sections 908 and 909 were added to the original act in 1988. Pub. L. No. 100-259, § 3(a), 102 Stat. 28 (1988).
8. 20 U.S.C. § 1681(a).
9. See Cohen v. Brown Univ., 991 F.2d 888, 893 (1st Cir. 1993) (stating that "Congress included no committee report with the final bill and there were apparently only two mentions of intercollegiate athletics during the congressional debate").
10. Id.
11. Within four years of Title IX's passage, women's participation increased by 600%. See O'Brien, supra note 4, at A1. Additional statistics showed the following breakdowns: Increase in athletic participation of high school women, 1971-1978: 294,000 to 2,083,000. Increase in collegiate women's intramural sports, 1971-1976: 108%. Increase in collegiate women's club sports, 1971-1976: 55%. Increase in intercollegiate women's sports, 1971-1976: 102%. Policy Interpretation, 44 Fed. Reg. 71,413, 71,419 (1979).
12. 34 C.F.R. §§ 106.37, 106.41 (1995). Throughout this Note, the Author refers to the Department of Education's replication of these HEW regulations in its own regulatory sector. Specifically, in 1979, Congress separated HEW into two divisions: the Department of Health and Human Services ("HHS") and the Department of Education ("DED"). See 20 U.S.C. §§ 3401-3510 (1994). HEW's Title IX regulations remained within HHS's own set of regulations, 45 C.F.R. § 86 (1994), while DED also copied them into its regulatory storehouse, 34 C.F.R. §§ 106.37, 106.41. Because DED is the "principal locus" of ongoing enforcement of educational regulations, however, post-1979 cases and commentaries have looked to the DED's placement of the regulations in the Code of Federal Regulations for citation and reference. Note that HHS's and DED's regulations are identical except for the change in language necessitated by the splitting of HEW into HHS and DED. See Cohen, 991 F.2d at 895, for a more comprehensive treatment of the HEW split, reorganization procedure, and placement of subsequent agency authority.
13. 34 C.F.R. § 106.41(c) (1995).
14. Id.
15. Id. § 106.41(c)(1)-(10) (1995).
16. Id. § 106.41(c) (1995).
17. See supra note 12 and accompanying text.
18. Policy Interpretation, 44 Fed. Reg. 71,413, 71,413 (1979).
19. 43 Fed. Reg. 58,070 (1978).
20. 44 Fed. Reg. 71,413, 71,413-23 (1979).
21. Id. at 71,413. However, HEW also stated that while the Policy Interpretation was designed for college athletics, its general principles would also "often apply to club, intramural, and interscholastic athletic programs." Id. This phrase embedded within the HEW Policy Interpretation could, this Author suggests, lead to many more Title IX athletics lawsuits based on secondary and grade schools not following the Title IX regulations providing for equal treatment and opportunities. Now that the collegiate level lawsuits have opened the doors with favorable holdings for women's sports, see infra parts II and III, parents pleading for their daughters' equal opportunities may soon bring more high school level suits.
22. 44 Fed. Reg. 71,413, 71,414 (1979).
23. Id.
24. 34 C.F.R. § 106.37(c) (1995). The regulation provides that a recipient, to the extent that it awards athletic scholarships, must "provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics." Id.
25. 44 Fed. Reg. 71,413, 71,415 (1979).
26. See supra text accompanying note 15.
27. 34 C.F.R. § 106.41(c)(1) (1995).
28. 44 Fed. Reg. 71,413, 71,417 (1979).
29. Id. at 71,417-18. This particular aspect of accommodating interests deals with the issue of females wishing to participate on teams offered only for male athletes and vice versa, and it is thus beyond the scope of this Note. For an interesting synopsis of the legal battles fought in this arena, see Polly S. Woods, Comment, Boys Muscling in on Girls' Sports, 53 OHIO ST. L.J. 891 (1992); see also Diana Heckman, Women and Athletics: A Twenty Year Retrospective on Title IX, 9 U, MIAMI ENT. & SPORTS L. REV, 1, 47-59 (1992).
30. Id. at 71,417-18. This particular aspect of accommodating interests deals with the issue of females wishing to participate on teams offered only for male athletes and vice versa, and it is thus beyond the scope of this Note. For an interesting synopsis of the legal battles fought in this arena, see Polly S. Woods, Comment, Boys Muscling in on Girls' Sports, 53 OHIO ST. L.J. 891 (1992); see also Diana Heckman, Women and Athletics: A Twenty Year Retrospective on Title IX, 9 U, MIAMI ENT. & SPORTS L. REV, 1, 47-59 (1992).
31. 44 Fed. Reg. 71,413, 71,418 (1979).
32. Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993).
33. 44 Fed. Reg. 71,413, 71,418 (1979). The Author shall designate these three subtests as the "Significant Proportionality," "Continuing Expansion," and "Full Accommodation" tests, respectively, and more fully discuss these tests and their significance in Parts II and in of this Note.
34. Id. Included among these additional factors for compliance assessment were the following: (1) Whether the competitive schedules for men's and women's teams, on a program-wide basis, afford proportionally similar numbers of male and female athletes equivalently advanced competitive opportunities; or (2) Whether the institution can demonstrate a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex. Id. These two factors appear to reemphasize the totality of the Effective Accommodation test. Also included in the application of the Effective Accommodation test was a statement from HEW that schools would not be required to "upgrade teams to intercollegiate status . . . absent a reasonable expectation that intercollegiate competition in that sport will be available within the institution's normal competitive regions." Id. However, the institution would possibly be responsible for actively encouraging such interest in the region, should none be perceived to exist beyond its own student body. Id.; see also infra text accompanying notes 220-22.
35. 20 U.S.C. § 1681(a).
36. Among those decisions finding that the program-specific model applied were Rice v. President & Fellows of Harvard College, 663 F.2d 336, 338-39 (1st Cir. 1981), cert. denied, 456 U.S. 928 (1982); University of Richmond v. Bell, 543 F. Supp. 321 (E.D. Va. 1982); Omen v. Ann Arbot School Board, 507 C. Supp. 1376 (E.D. Mich. 1981).
37. See Jill K. Johnson, Note, Title IX and Intercollegiate Athletics: Current Judicial Interpretations of the Standard for Compliance, 74 B.U. L. REV. 553, 561 (1994) (stating the program-specific viewpoint's "narrow interpretation excluded almost all university athletic departments from Title IX coverage because they rarely receive any direct financial assistance").
38. See id. at 561-63. In essence, parties supporting the program-specific view pointed to initial statements made about the applicability of Title IX as explicitly institution-wide that were not enacted by Congress and thus, they said, were implicitly refused by Congress - especially as it used institution-wide language elsewhere within the amendments. Alternatively, parties supporting the institution-wide approach argued that several congressmen had sought unsuccessfully to amend Title IX by restricting its applicability to only those programs receiving direct federal aid and that Congress' failure to enact these amendments implicitly welcomed the institution-wide approach. Moreover, institution-wide proponents "contended that the remedial nature of Title IX required that it be given the broadest interpretation necessary to carry out its remedial goals." Id. at 563.
39. Id. at 562. The basis of this "release" theory was framed in Bob Jones University v. Johnson, 396 F. Supp. 597, 602-03 (D.S.C. 1974), aff'd mem., 529 F.2d 514 (4th Cir. 1975).
40. The Author would also have argued the institution-wide approach, given the 1979 Policy Interpretation of HEW. Specifically, HEW stated the Policy Interpretation was written to "clarif[y] the obligations which recipients of Federal aid have under Title IX to provide equal opportunities in athletic departments." Policy Interpretation, 44 Fed. Reg. 71,413, 71,415 (1979) (emphasis added). Because the program-specific viewpoint would have resulted in a tiny percentage of athletic programs being affected by Title IX's policy against gender bias, see supra text accompanying note 36, it seems illogical that HEW's OCR would have engaged in extended notice and comment rulemaking in order to carry out a statutory section applicable only to a few rare universities. However, the Author concedes this argument might have still failed because this Title IX issue arose in the era before Chevron was enacted, and courts were not yet clearly obligated to defer to the permissible statutory interpretations of administrative agencies. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
41. 465 U.S. 555 (1984).
42. Id. One commentator underlined the inconsistency of the Court's program-specific viewpoint and excerpted portions of Justice Brennan's dissent from Grove City which highlighted the absurdity of the majority opinion. That is, given Title IX's antidiscrimination purpose, why is it acceptable to say that because Grove City College's financial aid department receives direct federal funds, it cannot discriminate but that the remainder of the college is not prohibited from discriminating in its admissions policies, athletic departments, or even academic departments? See Heckman, supra note 29, at 8.
43. See NYGARD & BOONE, supra note 1, at 291 (stating the OCR dropped 64 Title IX athletics discrimination suits following the program-specific holding of Grove City); see also Cohen v. Brown Univ. (Cohen I), 991 F.2d 888, 894 & n.5 (1st Cir. 1993) (relating that 79 ongoing OCR Title IX cases had been dropped or curtailed).
44. Cohen I, 991 F.2d at 894.
45. Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, § 3(a), 102 Stat. 28 (1988) (codified at 20 U.S.C. § 1687 (1990)).
46. Id. (emphases added). Congressional findings associated with the Civil Rights Restoration Act of 1987 included the observation that certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon the broad application of title IX of the Education Amendments of 1972 generally . . . and . . . legislative action is necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered. Id.; see also S. Rep. No. 64, 100th Cong., 1st Sess. 4 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 6 (revealing that if an institution received any federal funds, Congress wished to prohibit discrimination throughout the institution).
47. Cohen I, 991 F.2d at 894 (demonstrating that the Congressional Record includes statements by several senators lamenting past discrimination against female athletes and noting ample evidence of gender-based discrimination in athletics and education).
48. VALERIE M. BONNETTE & LAMAR DANIEL, U.S. DEP'T OF EDUC., TITLE IX ATHLETICS INVESTIGATOR'S MANUAL: 1990. The OCR published the 1990 Manual with the intent of having it supersede two similar packets issued in 1980 and 1982.
49. Id. at 7.
50. Id. at 21.
51. Id. at 23-24.
52. Id. at 24-25.
53. Id. at 24.
54. Id. For a more comprehensive discussion of the Investigator's Manual, see Johnson, supra note 36, at 567.
55. For additional sources of information on recent Title IX history and its effect on women's athletics, see Catherine Pieronek, A Clash of Titans: College Football v. Title IX, 20 J.C. & U.L. 351, 352-55 (1994); Johnson, supra note 36, at 557-70; R. Lindsay Marshall, Case Comment, Cohen v. Brown University: The First Circuit Breaks New Ground Regarding Title IX's Application to Intercollegiate Athletics, 28 GA. L. REV. 837, 842-47 (1994); Mary Beth Petriella, Note, Injunctive Relief - Title IX, 4 SETON HALL J. SPORT L. 595, 595-600 (1994).
56. For additional sources of information on recent Title IX history and its effect on women's athletics, see Catherine Pieronek, A Clash of Titans: College Football v. Title IX, 20 J.C. & U.L. 351, 352-55 (1994); Johnson, supra note 36, at 557-70; R. Lindsay Marshall, Case Comment, Cohen v. Brown University: The First Circuit Breaks New Ground Regarding Title IX's Application to Intercollegiate Athletics, 28 GA. L. REV. 837, 842-47 (1994); Mary Beth Petriella, Note, Injunctive Relief - Title IX, 4 SETON HALL J. SPORT L. 595, 595-600 (1994).
57. For additional sources of information on recent Title IX history and its effect on women's athletics, see Catherine Pieronek, A Clash of Titans: College Football v. Title IX, 20 J.C. & U.L. 351, 352-55 (1994); Johnson, supra note 36, at 557-70; R. Lindsay Marshall, Case Comment, Cohen v. Brown University: The First Circuit Breaks New Ground Regarding Title IX's Application to Intercollegiate Athletics, 28 GA. L. REV. 837, 842-47 (1994); Mary Beth Petriella, Note, Injunctive Relief - Title IX, 4 SETON HALL J. SPORT L. 595, 595-600 (1994).
58. See Andrew Blum, Athletics in the Court, NAT'L L.J., Apr. 5, 1993, at 1, 30 (illustrating that schools including the University of Oklahoma, the College of William and Mary, the University of New Hampshire, and the University of Massachusetts at Amherst have all had to reinstate women's teams in the face of Title IX court battles); O'Brien, supra note 4 (noting that Temple University, Colorado State University, Cornell University, Auburn University, and the California State University have all lost or settled gender equity suits in recent years).
59. See supra note 12.
60. Policy Interpretation, 44 Fed. Reg. 71,413, 71,413-23 (1979).
61. Id. at 71,418. The enforcement regulations are located at 34 C.F.R. §§ 110.30-110.39 (1995).
62. 44 Fed. Reg. 71,413, 71,418 (1979).
63. Id.
64. 441 U.S. 677 (1979). Some commentators have noted that this implied right of action signaled a positive step for parties suffering gender-based discrimination in athletics, as Title IX enforcement prior to this opening of the courthouse doors had been somewhat lax. See, e.g., Ellen J. Vargyas, Franklin v. Gwinnett County Public Schools and Its Impact on Title IX Enforcement, 19 J.C. & U.L. 373 (1993).
65. 503 U.S. 60 (1992).
66. Id. at 75-76.
67. See Vargyas, supra note 61, at 381.
68. Id. at 380.
69. Id.
70. Id. Vargyas also points out that the prolonged aspect of Title IX litigation without recourse to monetary damages made mootness a constant problem. Id. For example, groups of student-athletes wishing to reinstate their team to varsity status would graduate and no longer have an injury redressable by injunctive means once the lawsuit had concluded. Id. With the advent of monetary relief provided by Gwinnett County, the absence of any meaningful remedy for "victorious" student plaintiffs was potentially eliminated. In addition, Vargyas demonstrates that the OCR administrative route also left little room as a viable alternative for plaintiffs. Added to the fact that the OCR has never used the ultimate remedy of pulling federal assistance from a university, see supra note 65 and accompanying text, it "rarely impose[s] any strong remedies at all." Vargyas, supra note 61, at 381. Where the OCR finds violations, its usual actions include: (1) to negotiate "assurances" with the institution in which the institution represent[s] that it will come into compliance; (2) on the basis of these assurances find that the institution is in compliance; and (3) to close the case with little, if any, follow-up. The complaining party . . . play[s] virtually no role in this process. Id. (footnote omitted). As a result of this administrative ineffectiveness, only a few of the potential Title IX complaining parties have sought out the administrative process. Id.
71. Blum, supra note 55, at 1.
72. See O'Brien, supra note 4, at A1.
73. Roberts v. Colorado State Bd. of Agric., 998 F.2d 824 (10th Cir.), cert. denied, 114 S. Ct. 580 (1993); Cook v. Colgate Univ., 992 F.2d 17 (2d Cir. 1993); Cohen v. Brown Univ. (Cohen I), 991 F.2d 888 (1st Cir. 1993); Favia v. Indiana Univ. of Pa., 812 F. Supp. 578 (W.D. Pa.), aff'd, 7 F.3d 332 (3d Cir. 1993).
74. See infra part IV.
75. According to attorneys representing women plaintiffs in Title IX suits, "once these cases get to court, schools generally have no valid defense." Blum, supra note 55, at 1, 30, As a result, many universities threatened with lawsuits decide not to litigate and settle while those who do go to court are losing. Only one university has won a Title IX gender-equity-in-sports case - the University of New Mexico - in a pre-Cohen I lawsuit. Id. 73. 991 F.2d 888. On remand, the district court applied the First Circuit's analysis of Title IX to find that, as of March, 1995, Brown University continued to be in violation of the statutory mandates. Cohen v. Brown Univ. (Cohen II), 879 F. Supp. 185 (D.R.I. 1995); see infra notes 131-46 and accompanying text.
76. Cohen I, 991 F.2d at 891; see also Cohen II, 809 F. Supp. 978.
77. Cohen I, 991 F.2d at 892.
78. Id.
79. Id. This total savings was broken down as follows: women's volleyball, $37,127; women's gymnastics, $24,901; men's water polo, $9250; and men's golf, $6545. Id.
80. Id.
81. Id.
82. Id.
83. Id.
84. 441 U.S. 677 (1979); see also supra note 61 and accompanying text.
85. Cohen I, 991 F.2d at 893.
86. Id.
87. Id. The court outlined four factors in evaluating a party's motion for preliminary injunction: (1) the movant's probability of victory on the merits; (2) the potential for irreparable harm if the injunction is refused; (3) the balance of interests as between the parties, i.e., whether the harm to the movant if the injunction is withheld outweighs the harm to the nonmovant if the injunction is granted; and (4) the public interest. Id. at 902, If a reviewing court felt the plaintiffs' case satisfied these factors, it would be compelled to affirm a preliminary injunction. Id.
88. Id.
89. Id. at 895. Chevron is a Supreme Court case setting out a two-prong analysis of administrative agency interpretations of congressional statutes. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Chevron's first prong asks whether the agency's interpretation is a permissible reading of the statute. Id. at 842-45. If so, prong two of Chevron states that a court must accord it substantial deference in its interpretation and application of the statute. Id. 88. Cohen I, 991 F.2d at 895.
90. Id. at 896.
91. 34 C.F.R. § 106.41 (c) (1995).
92. See supra text accompanying note 15.
93. 34 C.F.R. § 106.41(c)(1) (1995).
94. Cohen I, 991 F.2d at 896-97.
95. Id. at 897.
96. Id.
97. Id.
98. Id.
99. Id. (emphasis added).
100. Id.
101. Id.
102. Id. at 898.
103. Id.
104. Id.
105. Id.
106. Id.
107. Id. In fact, as of 1993, only one school had managed to satisfy the Substantial Proportionality test. Washington State University, under a court order to maintain proportional ratios, sported a 44% women varsity athletics population with a 45% female student body. See Intercollegiate Sports: Hearing Before the Subcommittee on Commerce, Consumer Protection, and Competitiveness of the Committee on Energy and Commerce, 103d Cong., 1st Sess. 24 (1993) [hereinafter Hearing] (testimony of Donna A. Lopiano, Executive Director, Women's Sports Foundation).
108. Cohen I, 991 F.2d at 898.
109. Id.
110. Id.
111. Id.
112. Id. (quoting Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (1979)).
113. Id. For schools whose athletic budgets were unable to afford the upgrade in participatory opportunities for female athletes to meet present interests, the court suggested looking back again to the Substantial Proportionality test. If Full Accommodation was impossible, the school could comply with the Effective Accommodation model via "subtraction and downgrading" of the overrepresented gender's athletic opportunities. Id. at 898 & n.15. In essence, the school would meet the necessary ratios by reducing the advantaged gender's opportunities while maintaining the status quo for the disadvantaged gender.
114. Cohen I, 991 F.2d. at 899.
115. Id. To illustrate its reasoning and the "myopic" view of Brown's argument, the court set out a theoretical Oooh U., whose student body consists of 1000 men and 1000 women - a one to one proportion. Id. If 500 of these men and 250 of these women demonstrated an interest and ability in varsity athletics, the ratio of interested men to interested women would be two to one. Under Brown's theory, if it provided athletic slots for 100 men and 50 women, it would comply with Title IX despite the fact that the interests of 200 additional women would be unmet. Id. However, the court noted, the law required satisfaction of at least one of the Effective Accommodation test's benchmarks. Id. So, under this illustration, compliance with Title IX would either require Oooh U. to add an additional 50 slots to its women's programs or to "subtract and downgrade" the men's program to 50 slots total (both options thereby meeting the Substantial Proportionality test). Id. Alternatively, Oooh U. could expand its athletics program in efforts to create additional opportunities until it accommodated all "interested" women (presuming at this point that women were still the underrepresented gender), thus satisfying Full Accommodation. Id. Despite the fact that this illustration extends clearer meaning to the court's interpretation of the Full Accommodation test, another example may have more adequately demonstrated the fallacy and unfairness in Brown's argument given the purpose of Title IX (i.e., eliminating gender-based discrimination) and the wording of this third benchmark (i.e., "full" accommodation). See infra text ascompanying note 2.00-01 for the Author's ovn reworking of this numerical illustration of the Full Accommodation test.
116. Notwithstanding the Cohen I court's analysis and its subsequent embrace by four other circuits, some universities still feel that they are complying with Title IX when they use the Brown method of meeting interests. See O'Brien, supra note 4, at A1 (noting that both Brigham Young University and Southern Utah University erroneously contend that satisfying interest ratios, not unmet interests, meets Title IX compliance standards). Commentators suggest that institutions taking this approach are seeking to use historical discrimination (e.g., sports socialization) to justify current gender discrimination. Id.
117. Cohen I, 991 F.2d at 899.
118. Id. at 900.
119. Id.
120. Id.
121. Id.
122. Id. at 901 (citing Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 565-66 (1990), which held that Congress does not have to show a specific finding of discrimination to award race-based contracts, and Califano v. Webster, 430 U.S. 313, 317 (1977), which deemed constitutional a social security law that favored women because it was enacted as a general remedy for past gender discrimination). Brown levelled one more contention against the "full accommodation" reading of Title IX, suggesting that it constituted affirmative action without a "factual predicate" to warrant it. Id. The court summarily refused this stance, noting that it was just a variant of Brown's Fifth Amendment argument. Id.
123. Id.
124. Id.
125. Id. at 902 (citing Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (1979)).
126. Id. at 892, 903.
127. Id. at 903.
128. Id. (emphasis in original); see also supra text accompanying note 81.
129. Id. at 904 (quoting Cohen v. Brown Univ., 809 F. Supp. 978, 992 (D.R.I. 1992)). The hazier, more "problematic" aspect of the Full Accommodation test would arise, the court said, in instances where plaintiffs sought to promote new or club teams to varsity status that had never before reached that stage as opposed to the demotion of varsity status at issue Id.
130. 34 C.F.R. § 106.41(c)(1) (1995).
131. Cohen I, 991 F.2d at 907.
132. Cohen v. Brown Univ. (Cohen II), 879 F. Supp. 185, 200, 214 (D.R.I. 1995). Cohen II's primary focus on remand was whether Brown University had yet satisfied any of the three prongs of compliance delineated in the DED's Policy Interpretation and mandated by the "Equal Opportunity" provision of the DED's § 106.41(c)(1) regulation. Id. at 193, 200. The court noted, however, that on December 16, 1994, it had entered a settlement agreement and stipulation of dismissal between the same group of plaintiffs and Brown regarding the equivalency in financial treatment of university-funded male and female teams. Id. at 192-93. The financial equivalency issue for all university-funded teams, the court noted, was therefore no longer a factor on remand: the sole issue in Cohen II was whether "significant disparities [continued to] exist in the number of intercollegiate participation opportunities available to men and . . . to women." Id. at 193 (emphasis added).
133. Id. Pettine noted that while the district court was not bound by the First Circuit's "application of the law to the facts then in evidence," the district court did remain bound to follow the First Circuit's legal pronouncements - regardless of whether the appellate level court's analysis emanated from review of a preliminary injunction (as here) or the review of a district court's trial on the merits. Id. (emphasis added).
134. Id. at 197 (citing the Javits Amendment, Pub. L. No. 93-380, § 844, 88 Stat. 612 (1974) (codified as amended at 20 U.S.C. § 1681) and its delegation of authority to the Secretary of Education to propose regulations implementing Title IX - including its application to intercollegiate sports).
135. Id. at 198-99 (noting that, under the Chevron standard, an agency's interpretation of its own regulation(s) is, for all practical purposes, granted the "force of law" unless the interpretation appears "clearly erroneous or inconsistent" with the regulation(s) and, thus, the court is required to abide by the DED's Policy Interpretation).
136. Id. at 189. Brown University provides monetary resources for university-funded varsities, while donor-funded teams are required to raise their own funds through private donations. In addition, Pettine found, Brown graces university-funded varsities with privileges and services it fails to allot similarly to donor-funded teams. As a result, the donor-funded "varsity" teams had found it difficult to "maintain a level of competitiveness" comparable to the university-funded squads in several ways: (1) other institutions were reluctant to include donor-funded teams in their varsity schedules; (2) donor-funded teams were unable to obtain varsity-level coaching and recruits; and (3) scraping up the funds for travel, post-season competition, and equipment was an insuperable task. Id. at 189-90.
137. Id. at 189.
138. Id. at 192.
139. Id. at 211 & n.53.
140. Id.
141. Id.; see also infra notes 229-30 and accompanying text.
142. Cohen II, 879 F. Supp. at 213.
143. Id.
144. Id. at 199-213.
145. Id. at 214 (quoting Cohen v. Brown Univ., 809 F. Supp. 978, 999 (D.R.I. 1992)). The district court suggested Brown could meet compliance standards through several alternative routes: (1) eliminate the athletic program entirely; (2) establish the requisite number of women intercollegiate participants; (3) downgrade some men's position; or (4) implement a mixture of the second and third remedies. Id. Brown apparently denounced these options as nothing more than an incentive to '"cut, cap or eliminate men's teams.'" Id. (quoting defendant's brief). However, the district court noted the options merely left the next move to Brown, allowing it the opportunity to "reduce the 'standard of living' for its university-funded varsity sports in order to expand the participation opportunities for its women athletes" and come closer to equal athletic opportunity for both genders. Id.
146. Id. Quickly after the Cohen II decision, Brown filed briefs to the appellate court claiming the lower court's decision created athletic quotas for females. Three groups representing 1700 universities joined Brown University in its brief to the First Circuit. Brown Appeals Ruling, N.Y. TIMES, June 27, 1995, at B12.
147. Brown Loses 2nd Sex-Bias Ruling, CHI. TRIB., Aug. 18, 1995, at C6. In addition to its finding that Brown continued to violate Title IX with its new plan, the court ordered Brown to follow the solution proposed by the female plaintiff-athletes, namely to create women's university-funded varsity teams for gymnastics, water polo, skiing, and fencing. However, the order will not become effective until an appeal of the district court's finding of a Title IX violation in Cohen II is reviewed once again by the First Circuit. Id.; see also Brown Cuts Men's Sports for Title IX, N.Y. TIMES, July 8, 1995, § 1, at 30 (stating that Brown's submitted and ultimately rejected plan would have required women's teams to have a minimum number of participants and would limit the size of all men's teams except for football, and quoting attorney for plaintiffs that Brown "decided to be acerbic" in their plan by "mak[ing] a point that achieving substantial proportionality must always result in absurd results").
148. Brown Loses 2nd Sex-Bias Ruling, CHI. TRIB., Aug. 18, 1995, at C6. In addition to its finding that Brown continued to violate Title IX with its new plan, the court ordered Brown to follow the solution proposed by the female plaintiff-athletes, namely to create women's university-funded varsity teams for gymnastics, water polo, skiing, and fencing. However, the order will not become effective until an appeal of the district court's finding of a Title IX violation in Cohen II is reviewed once again by the First Circuit. Id.; see also Brown Cuts Men's Sports for Title IX, N.Y. TIMES, July 8, 1995, § 1, at 30 (stating that Brown's submitted and ultimately rejected plan would have required women's teams to have a minimum number of participants and would limit the size of all men's teams except for football, and quoting attorney for plaintiffs that Brown "decided to be acerbic" in their plan by "mak[ing] a point that achieving substantial proportionality must always result in absurd results").
149. Roberts v. Colorado State Bd. of Agric., 998 F.2d 824 (10th Cir.), cert. denied, 114 S. Ct. 580 (1993); Cook v. Colgate Univ., 992 F.2d 17 (2d Cir. 1993); Favia v. Indiana Univ. of Pa., 812 F. Supp. 578 (W.D. Pa.), aff'd, 7 F.3d 332 (3d Cir. 1993).
150. Favia, 812 F. Supp. 578.
151. Id. at 580.
152. Id. at 585.
153. Id.
154. Id. at 582.
155. 998 F.2d 824 (10th Cir.), aff'g 814 F. Supp. 1507 (D. Colo.), cert. denied, 114 S. Ct. 580 (1993).
156. Roberts, 114 S. Ct. 580 (1993); see Laura Duncan, Colleges Slowly Leveling Playing Field for Women, CHI. DAILY L. BULL., Oct. 5, 1994, at 1 (noting gender advocates hailing as another victory the Supreme Court's denying certiorari following the district court's ultimate decision to reinstate the Colorado State University women's softball team).
157. Roberts, 998 F.2d at 830 (stating a 10.5% disparity between varsity women athletes and the female undergraduate enrollment was "not substantially proportionate").
158. Id.
159. Id. at 831 (finding that the district court had made "extensive findings concerning the unmet abilities and interests of the plaintiff softball players, and the feasibility of their organizing a competitive season of play").
160. 992 F.2d 17 (2d Cir. 1993).
161. Cook v. Colgate Univ., 802 F. Supp. 737, 745 (N.D.N.Y. 1992).
162. See Mike Dame, Many Lawsuits Later, Women Still Not Equal: The Push for Gender Equity Has Stirred Courts - But Not Playing Fields, ORLANPO SENTINEL, Aug. 21, 1994, at C1 (noting that a survey on the status of Title IX at the collegiate level cites an Athletic Director at the University of Iowa stating that the "evidence is overwhelming . . . [w]hen women threaten to go to court or take [schools] to court, they're winning hands down," adding that the "silly thing" about the situation is the amount of money being spent on lawyers, when schools could use the same money to help create equal athletic opportunities).
163. Id. (noting that, according to the OCR and the Women's Sports Foundation, 95% of colleges still do not comply with Title IX).
164. See Blum, supra note 55, at 31 (relating that when schools face budget cutbacks, they look to downsizing athletics, and the lesson of Title IX litigation is that "when women are not already being given an opportunity to participate in proportion to enrollment and schools eliminate teams, it had better be mens'[sic] teams only").
165. See Ron Grossman, Women Win Each Battle in the Gender-Equity War; When Budget Crunch Hits, Men's Teams Vanish, CHI. TRIB., Nov. 19, 1994, § 3, at 1, 4 (noting that the University of Illinois had cut men's swimming, the University of Notre Dame had axed men's wrestling, and many universities had eliminated men's gymnastics; also citing Northwestern University's wrestling coach that "all men's nonrevenue-producing sports are at risk"); Carl Redman, Gender Equity Causing Major Concern for LSU, BATON ROUGE ADVOC., Oct. 10, 1994, at ID (relating that Louisiana State University had cut men's gymnastics and wrestling, Oregon State had terminated men's track, the University of Oregon had eliminated baseball, and many schools had dropped swimming and wrestling); see also infra note 233.
166. See Ron Grossman, Women Win Each Battle in the Gender-Equity War; When Budget Crunch Hits, Men's Teams Vanish, CHI. TRIB., Nov. 19, 1994, § 3, at 1, 4 (noting that the University of Illinois had cut men's swimming, the University of Notre Dame had axed men's wrestling, and many universities had eliminated men's gymnastics; also citing Northwestern University's wrestling coach that "all men's nonrevenue-producing sports are at risk"); Carl Redman, Gender Equity Causing Major Concern for LSU, BATON ROUGE ADVOC., Oct. 10, 1994, at ID (relating that Louisiana State University had cut men's gymnastics and wrestling, Oregon State had terminated men's track, the University of Oregon had eliminated baseball, and many schools had dropped swimming and wrestling); see also infra note 233.
167. 35 F.3d 265 (7th Cir. 1994), aff'g 832 F. Supp. 237 (C.D. Ill. 1993), reh'g denied, 1994 U.S. App. LEXIS 27858 (7th Cir. Sept. 1, 1994), cert. denied, 115 S. Ct. 938 (1995). A similar case, but which only reached the district court level, brought an equal protection claim against a university for discontinuing the men's wrestling team; the court's disposition of the case is similar to the Seventh Circuit's in Kelley. Gonyo v. Drake Univ., 837 F. Supp. 989 (S.D. Iowa 1993).
168. Kelley, 35 F.3d at 269. Note that this relaxed stance on the part of the OCR has been, unfortunately, a mainstay of Title IX enforcement since the statute's inception. See supra notes 62-67 and accompanying text.
169. Kelley, 35 F.3d at 269 (noting that the university was facing a $600,000 reduction in its athletic budget and decided to field only teams that could compete for Big Ten and National Collegiate Athletic Association ("NCAA") championships).
170. Id. at 270.
171. Id.
172. Id. (quoting appellants' brief). The plaintiffs embellished their argument with an additional example: Title IX's regulations should also mandate eliminating men and women from academic departments "where they are overrepresented" if courts continue to uphold its validity. The Seventh Circuit rejected this argument, stating that Congress itself noted that intercollegiate athletics presented a different set of problems than those existent in employment and academics. Id.
173. Id.
174. Id. at 271.
175. Id. The court refused to analyze whether Title DC would be unconstitutional should the Substantial Proportionality test be a requirement, as opposed to an option, of Title IX compliance. Id. at 271 & n.6.
176. Id. at 272 (citing Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 565-66 (1990)); see supra note 121 and accompanying text.
177. Equal Protection's intermediate scrutiny is applied whenever a governmental entity makes classifications based on gender. To withstand intermediate scrutiny, the classifications must "serve important governmental objectives" and be "substantially related to the achievement of those ends." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728 (1982).
178. Kelley, 35 F.3d at 272.
179. Id. (quoting appellants' brief).
180. Id. (emphases added).
181. Id. at 272-73.
182. See, e.g., Carol Herwig, Illinois Not Guilty of Reverse Discrimination, USA TODAY, Sept. 9, 1994, at 5C (noting that one gender-equity advocate responded to Kelley by rejoicing that it was the "first reverse-discrimination claim to reach the Court of Appeals, and they just blew them out of the water . . . and it is out of a conservative district").
183. See Grossman, supra note 163, § 3, at 1; Redman, supra note 163, at 1D.
184. See supra notes 94-96 and accompanying text.
185. See Cohen v. Brown Univ. (Cohen I), 991 F.2d 888, 897 (1st Cir. 1993) (noting that a university could "lavish" its women's teams with benefits surpassing even those of the male team members, but that this would not necessitate a compliance finding under Title IX).
186. Policy Interpretation, 44 Fed. Reg. 71,413, 71,413-23 (1979).
187. 34 C.F.R. § 106.41(c)(1)-(10) (1995).
188. 44 Fed. Reg. 71,413, 71,415-18 & n.3 (1979).
189. Id. at 71,418 (emphasis added).
190. As mentioned in Parts II and III above, the Policy Interpretation and the Title IX regulations constrain courts in their analysis of Title IX: the Chevron test calls for courts to accord "substantial deference" to these agency interpretations, especially when Congress has explicitly delegated the interpretation of a federal statute to a particular agency. See supra text accompanying notes 87-88 & 170.
191. 44 Fed. Reg. 71,413, 71,418 (1979).
192. See Kelley v. Board of Trustees, 35 F.3d 265, 269 (7th Cir. 1994) (finding the University of Illinois' decision to cut more men's teams than women's teams "prudent" in light of the greater than 20% difference between female athletic opportunities and the proportion of female undergraduate students); Cohen v. Brown Univ. (Cohen I), 991 F.2d 888, 892-93 (1st Cir. 1993) (finding an unacceptable 11.3% disparity between varsity female athletes and the female undergraduate population); Favia v. Indiana Univ. of Pa., 7 F.3d 332 (3d Cir. 1993) (affirming the district court's determination of a lack of substantial proportionality where there existed an almost 20% difference between women's athletic slots and the number of undergraduate women); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir.) (finding an absence of substantial proportionality given the 10.5% variation between female athletic population and female student body composition), cert. denied, 114 S. Ct. 580 (1993).
193. Roberts, 998 F.2d at 830.
194. Id.; see also Carol Herwig, Brown Decision Puzzling, University to Defend Cutting Women's Sports, USA TODAY, Sept. 20, 1994, at 14C (illustrating that the University of Texas athletic department originally planned to fight a Title IX suit brought by female athletes because it did "a comparison of [itself] to other schools [and] . . . knew [it was] doing more").
195. 20 U.S.C. § 1681(a).
196. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728 (1982).
197. 34 C.F.R. § 106.41(c) (1995).
198. Policy Interpretation, 44 Fed, Reg. 71,413, 71,414 (1979).
199. Id. at 71,418.
200. Id.
201. Proponents of this perspective have failed to describe how they measure these "interests." Are surveys taken only among the school's student body? Or in the community, including future university students? Or, in short-sighted fashion, only those members of existing teams at the university? This issue has bearing on the discussion infra notes 207-23 and accompanying text.
202. See supra note 114 and accompanying text.
203. Cohen v. Brown Univ. (Cohen I), 991 F.2d 888, 899 (1st Cir. 1993).
204. See B. Glenn George, Who Plays and Who Pays: Defining Equality in Intercollegiate Athletics, 1995 WIS. L. REV. 647, 656 ("[G]iven limited resources, the question should be whether the satisfaction and/or frustration levels of men and women are equitable.").
205. 20 U.S.C. § 1681(a).
206. Policy Interpretation, 44 Fed. Reg. 71,413, 71,422 (1979).
207. Id.
208. Id. (emphases added).
209. Cohen I, 991 F.2d at 898. Because the Kelley court additionally found that the Effective Accommodation test in its entirety satisfied constitutional law's "substantially related" means inquiry, Kelley v. Board of Trustees, 35 F.3d 265, 272 (7th Cir. 1994), the appellate courts apparently find no constitutional infirmities with the methods the Title IX regulations and Policy Interpretation called for in implementing Title IX. Therefore, the benign gender classification that the Full Accommodation test demands, though it may seem unfair to "interest ratio" advocates, passes both statutory and constitutional muster.
210. Marshall, supra note 54, at 855-58.
211. Id. at 856.
212. See Favia v. Indiana Univ. of Pa., 7 F.3d 332 (3d Cir. 1993) (considering Title IX compliance when members of demoted gymnastics and field hockey teams sought reinstatement of varsity-level sports); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir.) (assessing whether the university violated Title IX when it removed a women's softball team's varsity status and funding), cert. denied, 114 S. Ct. 580 (1993); Cohen I, 991 F.2d at 893 (measuring Title DC compliance after the university relegated its highly successful volleyball and gymnastics teams to club status).
213. See, e.g., O'Brien, supra note 4, at A1 (noting Brigham Young University and Southern Utah University administrators conducted interest-and-abilities surveys of their students and feel that they "show [these schools] are on track to compliance"). However, at least one gender equity proponent argues that it is also unfair for universities to measure women's sports "interests" based on surveys only distributed on campus, when those same universities sense no injustice in going outside the university to recruit "interested and able" athletes for their men's sports teams. Under that reasoning, the proponent argues, if a school is unable to find enough interested and able women on its campus to compete successfully, it should "go out and recruit them," just as it does for the men's teams. O'Brien, supra note 4, at A1; see also 141 CONG. REC. E972 (daily ed. May 9, 1995) (statement of Rep. Maloney) ("By offering women opportunities in a variety of sports, more women choose to become involved in sports."); George, supra note 201, at 659 (relating that perhaps fewer women express interest in collegiate sports because they are already cognizant that the available slots for female athletes are scarce or nonexistent). The Cohen II district court agreed with these latter assessments of "interest" surveys. 879 F. Supp. at 202. Specifically, the plaintiffs' expert, the athletic director for women's sports at the University of Iowa, "testified persuasively that a university 'predetermines' the approximate number of athletic participants and the male to female ratio." This testimony convinced the court that Brown University also "predetermined the gender balance of its athletic program" (and thus the gender "interests") "through the selection of sports it offer[ed], the size of the teams it maintain[ed, the coaches it hired,] and the recruiting and admissions practices it implemented]." Id. (emphasis added). In refusing an interest test based on a survey of matriculated students at Brown University, the court also noted that "[w]hat students are present on campus to participate in a survey of interests has already been predetermined through the recruiting practices of the coaches." Id. at 206. Finally, the district court found that "even a successful survey of all academically able potential Brown applicants could not . . . account for the extent to which opportunities drive interest": even Brown University's own defense expert agreed that if Brown provided far more athletic opportunities for women, the percentage of athletically interested women would also rise to reflect those increased opportunities. Id. at 207 (emphasis added). This defense expert's testimony (ironically) illustrates most pointedly the historical gender discrimination and cyclical socialization of athletic interests that Title IX seeks to combat. As aptly put by one commentator, "[T]here is a 'quota' involved here, but it is Brown's. The school's policies effectively ensure that 62% of its varsity athletes are men, even though more than half of its students are women." Lawyer Makes Argument Title IX Fair, Successful, PLAINDEALER (Cleveland), May 21, 1995, at 8D; see also infra notes 216-18 and accompanying text.
214. O'Brien, supra note 4, at A1 (reporting that one administrator points to the "national trends" as well).
215. See, e.g., Lee Feinswog, LSU's Athletic Program Faces Big Bout in Lawsuit, BATON ROUGE ADVOC., Oct. 9, 1994, at 16C. The commissioner of the Louisiana High School Athletic Association states that what colleges do strongly affects what sports become popular at the high school level. The commissioner added that what "a lot of people don't realize is . . . the college sports came first. High schools like what they saw and the chance to get scholarships, so they started programs. . . . College sports really help high school sports in this state." As an example, the commissioner pointed to the drop-off in high school wrestling participation following Louisiana State University's termination of the sport at the intercollegiate level. Mark Trumbull, US Men's Gymnastics Teeters on the Brink, CHRISTIAN SCI. MONITOR, Mar. 3, 1995, at 13 (illustrating that a decline in men's intercollegiate gymnastics teams - along with a media devoted only to football and basketball - has spelled a "phasing out" of the sport in grade schools and high schools). Although these examples both relate to men's sports, their analogy to women's sports experiences is strong: knowing that a space exists at the next level up often provides the only incentive to continue participation for grade school and high school athletes - male or female.
216. See, e.g., Lee Feinswog, LSU's Athletic Program Faces Big Bout in Lawsuit, BATON ROUGE ADVOC., Oct. 9, 1994, at 16C. The commissioner of the Louisiana High School Athletic Association states that what colleges do strongly affects what sports become popular at the high school level. The commissioner added that what "a lot of people don't realize is . . . the college sports came first. High schools like what they saw and the chance to get scholarships, so they started programs. . . . College sports really help high school sports in this state." As an example, the commissioner pointed to the drop-off in high school wrestling participation following Louisiana State University's termination of the sport at the intercollegiate level. Mark Trumbull, US Men's Gymnastics Teeters on the Brink, CHRISTIAN SCI. MONITOR, Mar. 3, 1995, at 13 (illustrating that a decline in men's intercollegiate gymnastics teams - along with a media devoted only to football and basketball - has spelled a "phasing out" of the sport in grade schools and high schools). Although these examples both relate to men's sports, their analogy to women's sports experiences is strong: knowing that a space exists at the next level up often provides the only incentive to continue participation for grade school and high school athletes - male or female.
217. See, e.g., Joanne Korth, Judge Rejects Brown's Junior Varsity Proposal, ST. PETERSBURG TIMES, Aug. 20, 1995, at 2C (noting that at the age of 14, females drop out of sports at a ratio of six to one compared to males and reporting that results of one Vanderbilt University researcher that this attrition rate is due to a regrettable socialization process that sends hidden messages to young girls which imply they will not be able to date boys if they participate in athletics); cf. Nancy Lieberman-Cline, Bloated Athletic Budgets, Not Title IX, Hurt Colleges, DALLAS MORNING NEWS, July 13, 1995, at 2B (stating that because Title IX has ultimately allowed more females to pursue sports and fitness, it has in turn "spurred sales" in athletic products designed for women, thereby signaling a marketing change in the perception of women's sports).
218. See, e.g., Joanne Korth, Judge Rejects Brown's Junior Varsity Proposal, ST. PETERSBURG TIMES, Aug. 20, 1995, at 2C (noting that at the age of 14, females drop out of sports at a ratio of six to one compared to males and reporting that results of one Vanderbilt University researcher that this attrition rate is due to a regrettable socialization process that sends hidden messages to young girls which imply they will not be able to date boys if they participate in athletics); cf. Nancy Lieberman-Cline, Bloated Athletic Budgets, Not Title IX, Hurt Colleges, DALLAS MORNING NEWS, July 13, 1995, at 2B (stating that because Title IX has ultimately allowed more females to pursue sports and fitness, it has in turn "spurred sales" in athletic products designed for women, thereby signaling a marketing change in the perception of women's sports).
219. Karin Winegar, Can Less Be More For Those Who Head Women's Teams?, STAR TRIB. (Minneapolis), Oct. 21, 1994, at 18A (quoting Donna A. Lopiano, Executive Director of the Women's Sports Foundation, who states that "[t]here's a 95 percent basically white male sports journalist population, one that has been taught to devalue women's sports or not value it as much as men's sports" and "[r]esearch shows that what gets in our sport pages is not based on how many people go to a game . . . but simply the interest of the sports editor").
220. See, e.g., Suzanne Halliburton, Hawaii Women's Volleyball Program Finds Pot of Gold, AUSTIN AM.-STATESMAN, Sept. 1, 1995, at C1 (reporting that the University of Hawaii's women's volleyball team rivals men's basketball and baseball in popularity and may become the first volleyball program, male or female, to pay its own way); Lieberman-Cline, supra note 213, at 2B (citing a 1990 NCAA study which found that at least 26 Division I women's programs brought in at least $450,000 annually, while 13 amassed over $1.3 million per year in gate-receipt revenues and fundraising); O'Brien, surpra note 4, at A1 (noting that the University of Utah's gymnastics team sets an example of what a women's team can achieve when given enough recruiting and area support, attracting an average of more than 10,000 fans at its meets).
221. In addition, some commentators note that a lack of professional sports outlets for female athletes may fuel a greater interest in some male athletes than in their female counterparts to participate in collegiate athletics. George, supra note 201, at 659. Nevertheless, Title IX has fostered growth and better quality players in at least one professional women's sport-golf. Jerry Potter, First-time LPGA Winners on Record Pace, USA TODAY, Aug. 1, 1995, at 12C.
222. Policy Interpretation, 44 Fed. Reg. 71,413, 71,417 (1979). Curiously, none of the 1990's appellate court Title IX cases mention this portion of the Policy Interpretation, even though it is included in the policy discussion of the Effective Accommodation test.
223. Id. (emphases added).
224. See O'Brien, supra note 4, at A1. O'Brien notes one gender equity advocate's stance that universities must stop using historical discrimination to justify current discrimination in their programs. The advocate points out that shortly after Title IX was enacted, institutions also argued that women did not want to participate in sports, yet female participation ballooned over 600% in the following four years. She emphasizes, therefore, that it is not that female athletes "didn't want to [participate], [they] just weren't being allowed to." Id. 220. 44 Fed. Reg. 71,413, 71,418 (1979); see also Cohen v. Brown Univ. (Cohen II), 879 F. Supp. 185, 208 n.47 (D.R.I. 1995) (noting institutions may be compelled by Title IX regulations to "actively encourage" the development of intercollegiate competition in a given geographic area).
225. The wisdom of this section lies in the fact that it prevents neighboring universities from constantly shutting the door on interested women athletes with excuses that the surrounding schools do not have varsity teams against whom to compete. Were this practice allowed, no new women's sports teams would be accommodated, despite noticeable interests at the university itself, because the neighboring universities would circularly point to the absence of interests at other schools.
226. Several athletic departments have protested that until substantial proportionality is met, all athletic departments are required to impose "affirmative action" or "quota systems" in order to prove Full Accommodation. However, as Cohen II points out, while a number of universities may be unable to justify their programs under both the first and
227. One additional problem posed by the Full Accommodation prong, some universities feel, is that it consistently makes Title IX beneficial only to women. Cohen v. Brown Univ. (Cohen I), 991 F.2d 888, 900 n.17 (1st Cir. 1993). The First Circuit dismissed this complaint, relating that it "takes a rather isthmian view of the world at large" and fails to note that there are institutions (e.g., formerly all-women universities) where the men's athletics programs may be "underdeveloped . . . while fiscal retrenchment offers no reprieve. Under these circumstances, Title IX would protect the athletic interests of men as the underrepresented sex." Id. (emphasis added).
228. See George, supra note 201, at 654 ("[Proportionality has become the only realistic means of satisfying [the] OCR's definition of equitable accommodation.").
229. Hearing, supra note 106, at 8 (statement of Thomas K. Hearn, President of Wake Forest University: "The lesson here is radically at odds with the public perception of athletic departments awash in money. [Schools] built, in an environment of expanding resources, an athletic gorilla [they] cannot feed."); Blum, supra note 55, at 1, 31 (citing an attorney for St. Louis University that schools are facing budget crunches and looking to "downsiz[e] athletics").
230. See Blum, supra note 55, at 1, 31 (noting that the NCAA Gender Equity Committee found more than half of the national undergraduate composition is female, but that women represent fewer than a third of the available opportunities to play varsity sports); Dame, supra note 160, at C1 (stating that 95% of universities do not comply with Title IX standards).
231. See O'Brien, supra note 4, at A1 (relating that the previously unaggressive OCR is, according to athletic officials, "lumbering to life").
232. See supra note 11.
233. Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (1979) (emphases added).
234. To date, the only federal court to deal directly with this issue ruled at the district court level. In Cohen v. Brown Univ. (Cohen II), 879 F. Supp. 185, 207 (D.R.I. 1995), the district court supplemented the First Circuit's analysis in Cohen I by admonishing institutions to proceed with caution before decreasing men's varsity slots: while eliminating men's teams might legally allow an athletic department to reach Substantial Proportionality, should this proportionality not be reached, mere downsizing of men's athletic opportunities would not translate into an expansion or accommodation of women's opportunities under the Continuing Expansion prong of analysis. As a result of this analysis, the Author questions whether the Big Ten and Southeastern Conferences' stated goals to establish male/female participation ratios at 60/40 will shield a conference school in a Title IX lawsuit brought under § 106.41(c)(1). See Scott Rabelais, Southeastern Conference Seeks Gender-Equity Balance, BATON ROUGE ADVOC., Oct. 11, 1994, at 2D (illustrating the Big Ten and SEC gender-equity plans); Women in IU Athletics: A Survey of the Last 20 Years, MAJORITY REPORT NEWSLETTER (Ind. Univ. Office of Women's Affairs, Bloomington, Ind.), Dec. 1994, at 1 (on file with Indiana Law Journal) (noting Big Ten Conference's adoption of Gender Equity Action Policy requiring all member universities to reach a male/female participation ratio of 60/40 by June 30, 1997). These schools will be approaching, but missing by approximately 10%, the substantial proportionality mark - thus failing the Substantial Proportionality test. Moreover, in most instances, these schools will probably not be able to accomplish this ratio through an expansion of women's opportunities; they will subtract and downgrade their men's teams instead and thereby presumably fail the Continuing Expansion test. Nevertheless, the goal is a start.
235. To date, the only federal court to deal directly with this issue ruled at the district court level. In Cohen v. Brown Univ. (Cohen II), 879 F. Supp. 185, 207 (D.R.I. 1995), the district court supplemented the First Circuit's analysis in Cohen I by admonishing institutions to proceed with caution before decreasing men's varsity slots: while eliminating men's teams might legally allow an athletic department to reach Substantial Proportionality, should this proportionality not be reached, mere downsizing of men's athletic opportunities would not translate into an expansion or accommodation of women's opportunities under the Continuing Expansion prong of analysis. As a result of this analysis, the Author questions whether the Big Ten and Southeastern Conferences' stated goals to establish male/female participation ratios at 60/40 will shield a conference school in a Title IX lawsuit brought under § 106.41(c)(1). See Scott Rabelais, Southeastern Conference Seeks Gender-Equity Balance, BATON ROUGE ADVOC., Oct. 11, 1994, at 2D (illustrating the Big Ten and SEC gender-equity plans); Women in IU Athletics: A Survey of the Last 20 Years, MAJORITY REPORT NEWSLETTER (Ind. Univ. Office of Women's Affairs, Bloomington, Ind.), Dec. 1994, at 1 (on file with Indiana Law Journal) (noting Big Ten Conference's adoption of Gender Equity Action Policy requiring all member universities to reach a male/female participation ratio of 60/40 by June 30, 1997). These schools will be approaching, but missing by approximately 10%, the substantial proportionality mark - thus failing the Substantial Proportionality test. Moreover, in most instances, these schools will probably not be able to accomplish this ratio through an expansion of women's opportunities; they will subtract and downgrade their men's teams instead and thereby presumably fail the Continuing Expansion test. Nevertheless, the goal is a start.
236. These substantially proportionate ratios, according to Title DC case law and the 1990 Investigator's Manual, must truly approach "substantial proportionality." See supra notes 51-53 and accompanying text (illustrating the Manual's example that if 52% of the student body is female, a university should have 52% of its intercollegiate spots alloted to women athletes).
237. See supra note 113 and accompanying text; see also Blum, supra note 55, at 1 (citing Trial Lawyers for Public Justice's Executive Director Arthur Bryant that "[t]he lesson of [Title IX] litigation is that when women are not already being given an opportunity to participate in proportion to enrollment and schools eliminate teams, it had better be mens' [sic] teams only").
238. Redman, supra note 163, at 1D (quoting the Louisiana State University athletic director's observation that "if the proportionality issue was the only test, [we] would have to have about three male sports and about 12 female sports"); see also Karen Goldberg, Tille IX Factions Turn up the Heal: Gender Equity Threatens Football, WASH. TIMES, Aug. 27, 1995, at C1 (stating that in past 20 years, 140 college wrestling teams have been eliminated, along with 101 men's gymnastics teams and 64 men's swimming teams); Thomas Stinson, Dying: Men s College Gymnastics Title IX Victims: In Future, U.S. Olympic Teams May Pay for the NCAA's Gender Equity Policies, ATLANTA J. & CONST., Jan. 8, 1995, at F2 (noting that because of "shifting budgetary philosophies and the gender equity movement, men's gymnastics has become an endangered species" and that the April, 1995 NCAA men's gymnastics championships was almost the sport's last).
239. Redman, supra note 163, at 1D (quoting the Louisiana State University athletic director's observation that "if the proportionality issue was the only test, [we] would have to have about three male sports and about 12 female sports"); see also Karen Goldberg, Tille IX Factions Turn up the Heal: Gender Equity Threatens Football, WASH. TIMES, Aug. 27, 1995, at C1 (stating that in past 20 years, 140 college wrestling teams have been eliminated, along with 101 men's gymnastics teams and 64 men's swimming teams); Thomas Stinson, Dying: Men s College Gymnastics Title IX Victims: In Future, U.S. Olympic Teams May Pay for the NCAA's Gender Equity Policies, ATLANTA J. & CONST., Jan. 8, 1995, at F2 (noting that because of "shifting budgetary philosophies and the gender equity movement, men's gymnastics has become an endangered species" and that the April, 1995 NCAA men's gymnastics championships was almost the sport's last).
240. In fact, one gender equity proponent feels that the next round of intercollegiate lawsuits will not feature women athletes against male athletes, but will instead pit male athletes against football teams. Grossman, supra note 163, § 3, at 1, 4.
241. "Advocates of gender equity do not like to see efforts to increase women's opportunities presented as an attack on football or any men's sports. . . . Football makes Title IX compliance difficult, not so much because of its expense as its number of players. . . . Because no female sport is nearly that large, women at football schools usually are underrepresented. It would take seven women's volleyball teams to equal football's participation rate." O'Brien, supra note 4, at A1; Ken Stephens, Coaches Fear Title IX Lawsuits May Prove Damaging for Football, DALLAS MORNING NEWS, Jan. 10, 1995, at 9B (noting some attorneys' observations that colleges will most easily and cheaply meet strict proportionality "by simply reducing the number of opportunities for men . . . [and] that football will be the primary target becaue it has far more participants - up to 85 scholarship players in Division-I-A - than any other sport").
242. Stephens, supra note 235, at 9B (quoting Grant Teaff, Executive Director of the American Football Coaches Association: "I have seen the enemy eyeball to eyeball, and I can tell you they're out to get the game of football"). Obviously, the rhetoric behind the Title IX dispute has taken on athletic (if not, at times, warlike) metaphors as strong as collegiate competition itself. Compare Teaff s statement, for example, with a quotation from Donna A. Lopiano of the Women's Sports Foundation: "It is so easy to cut men's nonrevenue sports and blame it on gender equity. That is the equivalent of taking your ball and going home. Football coaches have got to play like a team on this. It is the right thing to do." Goldberg, supra note 233, at C1.
243. Pieronek, supra note 54, at 353.
244. Cohen v. Brown Univ. (Cohen I), 991 F.2d 888, 891 (1st Cir. 1993).
245. One source notes that the benefits of female students' involvement in athletics is well documented: female athletes in high school are three times more likely to graduate; women athletes are 80% less likely to incur unwanted pregnancies; 92% less likely to use drugs; and female athletes in general have lower risks for breast cancer, higher levels of self-esteem, and lower rates of depression. Football Not Threatened by Success of Title IX, SEATTLE TIMES, May 12, 1995, at B6. The article suggests that immeasurable benefits also stem from women's intercollegiate athletic participation: What Congress - and college administrators - should not lose sight of is that college athletic departments have a larger mission than fielding a winning football team. The values of athletic competition, long-touted for young men, serve women equally well: teamwork, leadership, discipline, work ethic, self-sacrifice, pride in accomplishment, [and] strength of character. Id.; see also 141 CONG. REC. E972 (daily ed. May 9, 1995) (statement of Rep. Maloney) (arguing Title IX has done more than expand women's opportunities to participate in sports at the collegiate level; it has also expanded women's chances to attend universities through sports scholarships and advanced their teamwork, responsibility, and self-confidence skills).
246. B. Glenn George, Miles to Go and Promises to Keep: A Case Study in Title IX, 64 U. COLO. L. REV. 555, 568 (1993); cf. Grossman, supra note 163, § 3, at 1, 4 (quoting the Director of the College Football Association relating that football needs plenty of scholarships to produce a product that brings in spectators and leads to media contracts-"[w]e're in competition for the entertainment dollar").
247. Hearing, supra note 106, at 25 (testimony of Donna A. Lopiano, Executive Director of the Women's Sports Foundation, that "Congress needs to keep sending the clear message that we are dealing with educational sport and athletic programs that are clearly a part of the educational process. If this is not the case, they should not be receiving the benefits of tax-exempt status.").
248. See Grossman, supra note 163, § 3, at 1, 4 (noting mat, "[o]ff the record," coaches of some of the less prominent men's sports feel that football could stand to downsize in order to maintain fairness and a diversity of men's sports in an athletics program and quoting a gender equity advocate that "[i]t's only a matter of time before parents of [men playing the less prominent sports] start telling the colleges, 'I don't want my son sacrificed to the great god of football'"); see also George, supra note 201, at 663 ("Although some students may perceive [collegiate sports] as a training camp for professional sports, statistics prove most of those students wrong.").
249. Redman, supra note 163, at 1D.
250. Hearing, supra note 106, at 23; Lieberman-Cline, supra note 213, at 2B (relating that at 93% of NCAA member institutions, football does not make a profit, "much less pay for women's athletics" and adding that among Division I-A football programs, 45% of the football teams lose over $600,000 annually).
251. Alexander Wolff, Trickle-Down Economics; Cuts in College Football Would Help Fund Women's and Other Nonrevenue Programs, SPORTS ILLUSTRATED, Oct. 25, 1993, at 84.
252. O'Brien, supra note 4, at A1 (stating that "contrary to popular perception, . .. [football] generates revenue, but usually not enough to cover its own considerable expenses").
253. Hearing, supra note 106, at 41.
254. Id. Evidence presented at the congressional hearing also revealed that deficits in college football programs between 1981 and 1989 had undergone a three-fold increase, yet profits for the powerhouse teams had risen from $1.3 to $2.7 million. The big teams were getting richer and fewer in number, while the smaller ones faced ever-increasing budget problems. Id. at 52; George, supra note 240, at 568. George's article also notes that when the "University of Colorado football team achieved the pinnacle of success in 1990 by winning the national championship, the program lost over $800,000." In the meantime, almost half the budget for the athletic program emanated from "unearned income": student fees, institutional grants, etc. Id. at 567-68. George argues that if athletic departments are unable to justify sports as part of a "broad educational program" then they have "no business allocating $4.2 million" of university money and student fees to the program. Id. at 570.
255. Hearing, supra note 106, at 42 (adding that one should also realize "that those donations are tax-deductible" and parents of "daughters and sons are paying also when [government] give[s] that tax deduction, so [it] shouldn't discriminate on the basis of their children").
256. Wolff, supra note 245, at 84.
257. Hearing, supra note 106, at 44 (quoting one gender equity advocate who laments that despite these facts, there are "teams that have 150, 191 players" and "those are choices that are made over providing opportunities" for women athletes under Title IX) (testimony of Donna A. Lopiano, Executive Director, Women's Sports Foudation).
258. Id. at 43 (Thomas K. Hearn, President of Wake Forest University, notes that "[w]hether or not we can continue to reduce football grants in aid without fundamentally altering the game [and safety issues] is something" that still remains an issue, but Hearn senses "that [university programs] can.continue to reduce grants in aid" and thus their squad sizes).
259. See Grossman, supra note 163, § 3, at 1, 4 (stating that the College Football Association is lobbying Congress - so far unsuccessfully - for a Title IX exemption of revenue sports); cf. Hearing, supra note 106, at 40 (statement of Donna A. Lopiano, Executive Director of the Women's Sports Foundation) (arguing that football is not "a third sex" to be excluded from universities' sports participation ratios).
260. Policy Interpretation, 44 Fed. Reg. 71,413, 71,421 (1979). The Policy Interpretation rejected the argument that football and other revenue sports "should be totally exempted" or "receive special treatment" under Title IX. The agency realized that legitimate differences in sports such as equipment costs might result in some disparity on the budget side of Title IX compliance, and these were taken into account in the final Policy Interpretation. However, other aspects of Title IX compliance must still be met in order to "comply with the prohibition against sex discrimination." Id. at 71,419.
261. Those lawsuits based on the othet subsections of § 106.41(c) of the Title IX regulations - such as equivalent opportunities in the provision of equipment and facilities and the compensation of coaches - are beyond the scope of this Note. The Author wishes to address here only potential solutions to those suits based on the 34 C.F.R. § 106.41(c)(1) "effective accommodation" factor.
262. See Don Beck, Gender Equity Demands Threaten Big-Time Athletics, DALLAS MORNING NEWS, Dec. 15, 1994, at 4B (pondering whether "big-time programs have become too alien to be at home in academic environments").
263. It appears as if the NCAA has left this decision to the schools, offering little in the way of guidance for its members beyond conferences recommending - but not mandating - that certain actions be taken by member universities. Presently, the NCAA's most significant signal to its members is that an institution's commitment to gender equity will be among four criteria the NCAA considers in certification review processes. Gabby Richards, Schools to Monitor Equity - NCAA Eschews Police Role on Gender Issue, WASH. POST, Aug. 7, 1993, at F3.
264. See Johnson, supra note 36, at 588 (noting that if universities were to redistribute athletic department funds, they could best accomplish equal athletic opportunity).
265. For example, as football teams dispute whether certain expenditures are "legitimate" additional expenses under the Policy Interpretation, 44 Fed. Reg. 71,413, 71,415-16 (1979), any reallocation of funds for Title IX purposes may take up precious time for minor men's sports. Second, football teams may be slow to comply with budget cuts, especially if they take the prevailing attitude of some revenue-sports coaches that it would be difficult for them to maintain quality teams or recruit top-notch players if they had to take steps such as busing the team or not staying at first-rate hotels. See Lieberman-Cline, supra note 213, at 2B (relating one university athletic director's assessment of the "football coach versus Title DC " battles: "[Y]ou're dealing with a bunch of men who just don't want to give up what they have, . . . [who have] gotten more than they deserved, and they've gotten used to it"); Carl Redman, LSU Athletic Spending Favors Men's Programs, BATON ROUGE ADVOC., Oct. 11, 1994, at 1D (quoting men's basketball coach Dale Brown of Louisiana State University: "Do you think I'm going to get players (who can compete at that level) if I'm busing to four places (a year for games)? . . . I'm not trying to hurt anybody, but I'm not getting on a bus four times - I'll resign before I do something like that").
266. Wolff, supra note 245, at 84.
267. 34 C.F.R. § 106.41(c)(2)-(10) (1994); see William C. Rhoden, Sports of the Times: A Partisan Spin on Title IX, N.Y. TIMES, Apr. 22, 1995, § 1, at 31 (noting that one athletic director attending an NCAA symposium on Title DC compliance said that if he eliminated 20 football scholarships, he would save $250,000 in scholarship money alone).
268. Such a possibility unfortunately looms in the upcoming year. The Republican majority and conservative Democrats in the U.S. House of Representatives in early August, 1995 adopted, by voice vote, an amendment that would order review of Title IX. Jerry Gray, House Spending-Bill Votes Reveal Faults in Party Unity, N.Y. TIMES, Aug. 4, 1995, at Al. The voice vote came on the heels of a campaign by House Representative Dennis Hastert (R-III.) to change the way the OCR regulates gender equity in collegiate athletics. In his June, 1995 letter to the OCR, Hastert called for "common sense changes" to the enforcement of Title IX, including: (1) crediting universities for women's sports teams added many years ago (e.g., adding a women's team, on average since the passage of Title IX, every three years), and (2) allowing universities to demonstrate that male students might possess a greater interest in athletics than female students. Andrew Gottsman, Title IX Clarity Sought, CHI. TRIB., June 21, 1995, § 4, at 4. However, opponents were quick to point out the unfairness in Rep. Hastert's approach, noting that the first change would "reward[] inaction for the last 20 years" on the part of some universities. Similarly, "interest" surveys would not reflect the cyclical nature of athletic interests following athletic opportunities, which have been denied to women by these same universities for so long. Id. Obviously, Title IX remains a hotbed of controversy, flaring significantly after the Cohen II district court announced its decision. Within two months of that decision, experts and witnesses from both sides of the controversy convened on May 8, 1995, to testify before the House Subcommittee on Post-Secondary Education, Training, and Lifelong Learning. Members of the subcommittee noted that efforts to weaken Title IX could anger women and that any changes could have political ramifications - "[m]any of your voters have daughters." Andrew Gottsman, Hastert Bandstands for Revisions in Title IX; Illinois Pol Thinks Men's Sports Are Hit Too Hard, CHI. TRIB., May 10, 1995, § 4, at 1 (quoting Rep. Pat Williams). In contrast, many university presidents and representatives of men's sports argued during the hearings that Title IX has become a quota, rather than a fair way to increase athletic oppotunities for female students. Id.
269. Such a possibility unfortunately looms in the upcoming year. The Republican majority and conservative Democrats in the U.S. House of Representatives in early August, 1995 adopted, by voice vote, an amendment that would order review of Title IX. Jerry Gray, House Spending-Bill Votes Reveal Faults in Party Unity, N.Y. TIMES, Aug. 4, 1995, at Al. The voice vote came on the heels of a campaign by House Representative Dennis Hastert (R-III.) to change the way the OCR regulates gender equity in collegiate athletics. In his June, 1995 letter to the OCR, Hastert called for "common sense changes" to the enforcement of Title IX, including: (1) crediting universities for women's sports teams added many years ago (e.g., adding a women's team, on average since the passage of Title IX, every three years), and (2) allowing universities to demonstrate that male students might possess a greater interest in athletics than female students. Andrew Gottsman, Title IX Clarity Sought, CHI. TRIB., June 21, 1995, § 4, at 4. However, opponents were quick to point out the unfairness in Rep. Hastert's approach, noting that the first change would "reward[] inaction for the last 20 years" on the part of some universities. Similarly, "interest" surveys would not reflect the cyclical nature of athletic interests following athletic opportunities, which have been denied to women by these same universities for so long. Id. Obviously, Title IX remains a hotbed of controversy, flaring significantly after the Cohen II district court announced its decision. Within two months of that decision, experts and witnesses from both sides of the controversy convened on May 8, 1995, to testify before the House Subcommittee on Post-Secondary Education, Training, and Lifelong Learning. Members of the subcommittee noted that efforts to weaken Title IX could anger women and that any changes could have political ramifications - "[m]any of your voters have daughters." Andrew Gottsman, Hastert Bandstands for Revisions in Title IX; Illinois Pol Thinks Men's Sports Are Hit Too Hard, CHI. TRIB., May 10, 1995, § 4, at 1 (quoting Rep. Pat Williams). In contrast, many university presidents and representatives of men's sports argued during the hearings that Title IX has become a quota, rather than a fair way to increase athletic oppotunities for female students. Id.
270. Such a possibility unfortunately looms in the upcoming year. The Republican majority and conservative Democrats in the U.S. House of Representatives in early August, 1995 adopted, by voice vote, an amendment that would order review of Title IX. Jerry Gray, House Spending-Bill Votes Reveal Faults in Party Unity, N.Y. TIMES, Aug. 4, 1995, at Al. The voice vote came on the heels of a campaign by House Representative Dennis Hastert (R-III.) to change the way the OCR regulates gender equity in collegiate athletics. In his June, 1995 letter to the OCR, Hastert called for "common sense changes" to the enforcement of Title IX, including: (1) crediting universities for women's sports teams added many years ago (e.g., adding a women's team, on average since the passage of Title IX, every three years), and (2) allowing universities to demonstrate that male students might possess a greater interest in athletics than female students. Andrew Gottsman, Title IX Clarity Sought, CHI. TRIB., June 21, 1995, § 4, at 4. However, opponents were quick to point out the unfairness in Rep. Hastert's approach, noting that the first change would "reward[] inaction for the last 20 years" on the part of some universities. Similarly, "interest" surveys would not reflect the cyclical nature of athletic interests following athletic opportunities, which have been denied to women by these same universities for so long. Id. Obviously, Title IX remains a hotbed of controversy, flaring significantly after the Cohen II district court announced its decision. Within two months of that decision, experts and witnesses from both sides of the controversy convened on May 8, 1995, to testify before the House Subcommittee on Post-Secondary Education, Training, and Lifelong Learning. Members of the subcommittee noted that efforts to weaken Title IX could anger women and that any changes could have political ramifications - "[m]any of your voters have daughters." Andrew Gottsman, Hastert Bandstands for Revisions in Title IX; Illinois Pol Thinks Men's Sports Are Hit Too Hard, CHI. TRIB., May 10, 1995, § 4, at 1 (quoting Rep. Pat Williams). In contrast, many university presidents and representatives of men's sports argued during the hearings that Title IX has become a quota, rather than a fair way to increase athletic oppotunities for female students. Id.