Cohen v. Brown University

• Decision Date: 29 March 1995
• Docket Number: Civ. A. No. 92-0197.
• Parties: Amy COHEN, et al., each Individually and on Behalf of all Others Similarly Situated, Plaintiffs, v. BROWN UNIVERSITY, Vartan Gregorian, and David Roach, Defendants.
• Court: U.S. District Court — District of Rhode Island

879 F. Supp. 185

Amy COHEN, et al., each Individually and on Behalf of all Others Similarly Situated, Plaintiffs, v. BROWN UNIVERSITY, Vartan Gregorian, and David Roach, Defendants.

Civ. A. No. 92-0197.

United States District Court, D. Rhode Island.

March 29, 1995.

COPYRIGHT MATERIAL OMITTED

Lynette J. Labinger, Roney & Labinger, Amato A. DeLuca, Mandell, DeLuca & Schwartz, Raymond A. Marcaccio, Blish & Cavanagh, Providence, RI, Arthur H. Bryant, Trial Lawyers for Public Justice, Washington, DC, Herbert B. Newberg, Sandra L. Duggan, Kronfeld, Newberg & Duggan, Philadelphia, PA, Leslie A. Brueckner, Trial Lawyers for Public Justice, Washington, DC, for plaintiffs.

Julius C. Michaelson, Jeffrey S. Michaelson, Michaelson & Michaelson, Beverly E. Ledbetter, Providence, RI, Walter B. Connolly, Miller, Canfield, Paddock and Stone, Detroit, MI, for defendants.

OPINION AND ORDER

PETTINE, Senior District Judge.

I. INTRODUCTION

This is a class action lawsuit charging Brown University, its president, and its athletic director (collectively "Brown") with violating Title IX of the Education Amendments of 1972, 20 U.S.C. ?? 1681-1688 (1988) ("Title IX").¹ Specifically, the plaintiff class, which consists 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, contends that defendants have discriminated against women in the operation of Brown's intercollegiate athletic program. After carefully considering the legal arguments and evidence presented throughout the thirty day trial on the merits, I find Brown University to be in violation of Title IX.

This suit was initiated in response to the demotion of the women's gymnastics and volleyball teams at Brown from full varsity to club varsity status in May of 1991. Up until that time, both teams were fully funded by the University. At the same time that Brown demoted these two women's teams, and apparently in an effort to comply with its understanding of Title IX's directives, Brown also demoted two men's fully funded varsity teams, water polo and golf, to club varsity status. At that time, all four teams were stripped of their university funding and most of their varsity privileges.² Plaintiffs allege that, against a background in which men at Brown already enjoyed a disproportionately large share of the resources expended on athletics and of the intercollegiate participation opportunities afforded to student athletes, the facially even-handed demotions perpetuated Brown's discriminatory treatment of women.

Prior to the trial on the merits, this Court granted plaintiffs' motion for class certification and denied defendants' motion to dismiss. This Court subsequently heard fourteen days of testimony on plaintiffs' motion for a preliminary injunction. I ordered that the women's gymnastics and volleyball teams be reinstated to fully funded varsity status and prohibited Brown from eliminating or reducing the status or funding of any existing women's intercollegiate varsity team until the case was resolved on the merits. 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," the First Circuit affirmed. Cohen v. Brown Univ., 991 F.2d 888, 891 (1st Cir.1993).

At the time of the preliminary injunction, there was virtually no case law on point. Since issuance of the First Circuit's opinion, a number of other circuits have been faced with Title IX athletic discrimination suits. See, e.g., Horner v. Kentucky High Sch. Athletic Ass'n., 43 F.3d 265 (6th Cir.1994); Kelley v. Board of Trustees, 35 F.3d 265 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 938, 130 L.Ed.2d 883 (1995); Favia v. Indiana Univ. of Pennsylvania, 7 F.3d 332 (3d Cir.1993); Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993). The Third, Sixth, Seventh, and Tenth Circuits are in agreement with the First Circuit's interpretation of the law and relevant agency documents. These developments have been explored in a number of recent law review articles.³ In the instant case, defendants have advanced several provocative arguments that require a thorough examination of the relevant law. In addition, the unusual two-tiered structure of Brown's intercollegiate athletic program presents a unique factual situation requiring this Court to engage in an exhaustive analysis of Title IX and its regulatory complements.

First, I will chronicle the factual background of this case. Second, I will address several preliminary matters. Third, I will outline the legal framework of Title IX and the implementing regulations and interpretation. Fourth, I will review the degree of deference due these agency documents. Fifth, I will set forth this Court's interpretation of the law and will explain why the alternative interpretations offered by counsel must be rejected. Finally, I will discuss the specifies of this case in light of my legal conclusions.

II. FACTUAL BACKGROUND

Brown University is a Division I institution within the National Collegiate Athletic Association ("NCAA"). As such, Brown participates at the highest level of NCAA competition.⁴ Brown currently offers an extensive athletic program for its students.⁵ At the intercollegiate level it funds 13 sports for women and 12 sports for men. Additionally, it recognizes, but does not fund, several sports as "donor-funded" varsities (four men's teams and three women's teams).⁶ Although the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes.

Brown provides the financial resources to sustain the budgets of the "university-funded" varsities, whereas, it requires donor-funded teams to raise their own funds through private donations in order to exist. Brown also provides certain services and privileges to the university-funded varsities but not to the donor-funded varsities.⁷

A consequence of this two-tiered system is that most donor-funded varsities have found it difficult to maintain a level of competitiveness as high as their ability would otherwise permit. Their competitive disadvantage in comparison to university-funded teams is due, in part, to the reluctance of some schools to include donor-funded teams in their varsity schedules⁸ and in part to the inability of the teams to obtain varsity-level coaching⁹ and recruits,¹⁰ or to obtain funds for travel,¹¹ post-season competition¹² and equipment.¹³

Extensive testimony demonstrated that several donor-funded teams do have the interest and ability to compete at the top varsity level and would benefit from university-funded status. I find that the donor-funded women's gymnastics, women's fencing, and women's ski teams have demonstrated this interest and ability. The women's gymnastics team was a thriving university-funded varsity team prior to the 1991 demotion; in fact, the team won the Ivy League championship in 1989-90. See, e.g., testimony of Athletic Director Roach, Prelim.Inj. Hr'g Tr. 11/4/92 at 86 (acknowledging that at the time gymnastics was demoted, the team had the interest and ability to compete at the varsity level). The women's fencing team has been successful for many years against a number of club and varsity competitors, and, prior to the demotions, John Parry, who was the athletic director at that time, supported the team's request to be upgraded to varsity status. Prelim.Inj. Hr'g Tr. 10/27/92 at 122-26. Despite a meager budget, the women's ski team has consistently fielded a competitive team in the U.S. Collegiate Ski Association Osborne Division. See Trial Tr. 9/28/94 at 12-14 (head coach of Smith College women's varsity ski team testifying to strength and stability of the Brown University women's ski team).

Additionally, women's water polo, a club team, has demonstrated the interest and ability to compete at the highest varsity level.¹⁴ The women's water polo team, according to the coach of men's and women's water polo, is able to compete at a varsity level. See Trial Tr. 10/3/94 at 65 (testifying to varsity ability and schedule of the women's water polo team). See also Trial Tr. 10/5/94 at 18-20 (head coach of Slippery Rock University men's and women's varsity water polo teams testifying to stability and achievements of Brown University women's water polo team).

I also find that although all four teams would benefit from university-funded varsity status, only two of these teams, volleyball and skiing, would be able to sustain a competitive intercollegiate varsity schedule if supported at donor-funded status. The testimony demonstrated that gymnastics would effectively cease to exist as an intercollegiate varsity team if it were denied university funding. The gymnastics team does not attract enough private donations to afford quality coaching. See supra note 9. In addition, a donor-funded gymnastics team will draw less talented individuals to the team, which will, as a result, suffer competitively. The testimony also established that elevation of women's water polo, currently a club team, to donor-funded status would actually be financially disadvantageous for the team. As a club sport, the team currently receives $3000 from the Student Activities organization; as a donor-funded sport, the team would be required to raise all of its own funds. Trial Tr. 10/3/94 at 26.

In Cohen, I summarized the history of athletics at Brown University:

Nearly all of the men's varsity teams were established before 1927. Baseball was created first in 1869, followed by football in 1878 and track in 1879. The only men's teams established after 1927 were crew in 1961, water polo in 1974 elevated to varsity in 1

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