Cohen v. Brown University

• Decision Date: 04 February 1993
• Docket Number: No. 92-2483,92-2483
• Parties: , 82 Ed. Law Rep. 352 Amy COHEN, et al., Plaintiffs, Appellees, v. BROWN UNIVERSITY, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 888

991 F.2d 888

61 USLW 2654, 82 Ed. Law Rep. 352

Amy COHEN, et al., Plaintiffs, Appellees, v. BROWN UNIVERSITY, et al., Defendants, Appellants.

No. 92-2483.

United States Court of Appeals,

First Circuit.

Heard Feb. 4, 1993.

Decided April 16, 1993.

Jeffrey S. Michaelson, with whom Julius C. Michaelson, Michaelson & Michaelson, and Beverly E. Ledbetter, Providence, RI, were on brief, for defendants, appellants.

Lynette Labinger, with whom Roney & Labinger, Providence, RI, Sandra L. Duggan, Kronfeld, Newberg & Duggan, Philadelphia, PA, Arthur H. Bryant, Trial Lawyers for Public Justice, P.C., Washington, DC, Raymond Marcaccio, Blish & Cavanagh, Amato A. DeLuca, and Mandell, DeLuca & Schwartz, Ltd., Providence, RI, were on brief, for plaintiffs, appellees.

Linda S. Stein, Margaret M. Clark, Steptoe & Johnson, Ellen J. Vargyas, Washington, DC, and Deborah L. Brake, Fort Thomas, KY, on brief for Nat. Women's Law Center, Woman's Sports Foundation, and Nat. Ass'n for Girls and Women in Sport, amici curiae.

Before SELYA, CYR and STAHL, Circuit Judges.

SELYA, Circuit Judge.

In this watershed case, defendants-appellants Brown University, Vartan Gregorian, and David Roach appeal from the district court's issuance of a preliminary injunction ordering Brown to reinstate its women's gymnastics and volleyball programs to full intercollegiate varsity status pending the resolution of a Title IX claim. ¹ See Cohen v. Brown Univ., 809 F.Supp. 978 (D.R.I.1992). After mapping Title IX's rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties' arguments, we affirm.

I. BROWN ATHLETICS: AN OVERVIEW

College athletics, particularly in the realm of football and basketball, has traditionally occupied a prominent role in American sports and American society. For college students, athletics offers an opportunity to exacuate leadership skills, learn teamwork, build self-confidence, and perfect self-discipline. In addition, for many student-athletes, physical skills are a passport to college admissions and scholarships, allowing them to attend otherwise inaccessible schools. These opportunities, and the lessons learned on the playing fields, are invaluable in attaining career and life successes in and out of professional sports.

The highway of opportunity runs in both directions. Not only student-athletes, but universities, too, benefit from the magic of intercollegiate sports. Successful teams generate television revenues and gate receipts which often fund significant percentages of a university's overall athletic program, offering students the opportunity to partake of sports that are not financially self-sustaining. Even those institutions whose teams do not fill the grandstands of cavernous stadiums or attract national television exposure benefit from increased student and alumni cohesion and the support it engenders. Thus, universities nurture the legends, great or small, inhering in their athletic past, polishing the hardware that adorns field-house trophy cases and reliving heroic exploits in the pages of alumni magazines.

In these terms, Brown will never be confused with Notre Dame or the more muscular members of the Big Ten. Although its football team did play in the 1916 Rose Bowl and its men's basketball team won the Ivy League championship as recently as 1986, Brown's athletic program has only occasionally achieved national prominence or, for that matter, enjoyed sustained success. ² Moreover, at Brown, as at most schools, women are a relatively inconspicuous part of the storied athletic past. Historically, colleges limited athletics to the male sphere, leaving those few women's teams that sprouted to scrounge for resources.

The absence of women's athletics at Brown was, until 1970, an ineluctable consequence of the absence of women; Brown sponsored a women's college--Pembroke--but did not itself admit women. In 1971, Brown subsumed Pembroke. Brown promptly upgraded Pembroke's rather primitive athletic offerings so that by 1977 there were fourteen women's varsity teams. In subsequent years, Brown added only one distaff team: winter track. Hence, in the 1991-92 academic year, Brown fielded fifteen women's varsity teams--one fewer than the number of men's varsity teams.

II. THE PLAINTIFF CLASS

In the spring of 1991, Brown announced that it, like many other schools, was in a financial bind, and that, as a belt-tightening measure, it planned to drop four sports from its intercollegiate varsity athletic roster: women's volleyball and gymnastics, men's golf and water polo. The University permitted the teams to continue playing as "intercollegiate clubs," a status that allowed them to compete against varsity teams from other colleges, ³ but cut off financial subsidies and support services routinely available to varsity teams (e.g., salaried coaches, access to prime facilities, preferred practice time, medical trainers, clerical assistance, office support, admission preferences, and the like). Brown estimated that eliminating these four varsity teams would save $77,813 per annum, broken down as follows: women's volleyball, $37,127; women's gymnastics, $24,901; men's water polo, $9,250; men's golf, $6,545.

Before the cuts, Brown athletics offered an aggregate of 328 varsity slots for female athletes and 566 varsity slots for male athletes. Thus, women had 36.7% of the athletic opportunities and men 63.3%. Abolishing the four varsity teams took substantially more dollars from the women's athletic budget than from the men's budget, but did not materially affect the athletic opportunity ratios; women retained 36.6% of the opportunities and men 63.4%. At that time (and for a number of years prior thereto), Brown's student body comprised approximately 52% men and 48% women.

Following Brown's announcement of the cutbacks, disappointed members of the women's volleyball and gymnastics teams brought suit. They proceeded on an implied cause of action under Title IX, 20 U.S.C. §§ 1681-1688 (1988). See Franklin v. Gwinnett County Pub. Sch., --- U.S ----, ----, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208 (1992) (recognizing implied private right of action under Title IX); Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979) (same); see also Cannon, 441 U.S. at 687 n. 8, 99 S.Ct. at 1952 n. 8 (holding that exhaustion of administrative remedies is not a prerequisite to a Title IX suit). The plaintiffs charged that Brown's athletic arrangements violated Title IX's ban on gender-based discrimination, a violation that was allegedly exacerbated by Brown's decision to devalue the two women's programs without first making sufficient reductions in men's activities or, in the alternative, adding other women's teams to compensate for the loss.

On plaintiffs' motion, the district court certified a class of "all present and future Brown University women students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown." And, after hearing fourteen days of testimony from twenty witnesses, the judge granted a preliminary injunction requiring Brown to reinstate the two women's teams pending the outcome of a full trial on the merits. See Cohen, 809 F.Supp. at 1001. We stayed execution of the order and expedited Brown's appeal.

III. TITLE IX AND COLLEGIATE ATHLETICS

Title IX prohibits gender-based discrimination by educational institutions receiving federal financial support--in practice, the vast majority of all accredited colleges and universities. The statute sketches wide policy lines, leaving the details to regulating agencies. Since this appeal demands that we invade terra incognita, ⁴ we carefully recount the developments leading to the present version of Title IX and then examine the pertinent statutory and regulatory language.

A. Scope of Title IX.

At its inception, the broad proscriptive language of Title IX caused considerable consternation in the academic world. The academy's anxiety chiefly centered around identifying which individual programs, particularly in terms of athletics, might come within the scope of the discrimination provision, and, relatedly, how the government would determine compliance. The gridiron fueled these concerns: for many schools, the men's football budget far exceeded that of any other sport, and men's athletics as a whole received the lion's share of dedicated resources--a share that, typically, was vastly disproportionate to the percentage of men in the student body.

Part of the confusion about the scope of Title IX's coverage and the acceptable avenues of compliance arose from the absence of secondary legislative materials. Congress included no committee report with the final bill and there were apparently only two mentions of intercollegiate athletics during the congressional debate. See 118 Cong.Rec. 5,807 (1972) (statement of Sen. Bayh on privacy in athletic facilities); 117 Cong.Rec. 30,407 (1971) (statement of Sen. Bayh noting that proposed Title IX will not require gender-blended football teams). Nevertheless, under congressional direction to implement Title IX, the Secretary of Health, Education and Welfare (HEW) promulgated regulations in 1975 which included specific provisions for college athletics. Four years later, HEW's Office of Civil Rights (OCR) added another layer of regulatory exegesis when, after notice and comment, it published a "Policy Interpretation" that offered a more detailed measure of equal athletic opportunity.

In 1984, the Supreme Court radically altered the contemporary reading of Title IX. The Court held that Title IX was "program-specific," so that its tenets applied only to the program(s) which actually received federal funds and not to the rest of the university. Grove City College v. Bell, 465 U.S. 555, 574, 104 S.Ct. 1211, 1221, 79 L.Ed.2d 516 (1984). Because few athletic departments...