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COMMENTS
The Cohen Court’s Reading Of Title
IX:
Does It Really Promote A De Facto
Quota Scheme?
I. INTRODUCTION
The emergence of women onto the athletic scene has never been so
publicized as in the past few years with regard to the 1996 Summer
Olympic Games in Atlanta,1 the 1998 U.S. Women’s Olympic Ice
Hockey gold medalists,2 and the emergence of the newly popular
1
. See Cohen v. Brown Univ., 101 F.3d 155, 188 (1st Cir. 1996)
(stating “[o]ne need look no further than the impressive performances of
our country’s women athletes in the 1996 Olympic Summer Games to
see that Title IX [of the Education Amendments of 1972] has had a
dramatic and positive impact on the capabilities of our women athletes .
. . .”); see also Nancy Lieberman-Cline, Atlanta Olympics Show the
Impact of Title IX, DALLAS M ORNING NEWS, Oct. 17, 1996, at 2B
(attributing the success of U.S. women’s basketball to Title IX);
Olympics Show Progress But Not Yet Equality, USA TODAY, July 23,
1996, at 14A (stating that the United States sent a larger percentage of
women athletes to the Atlanta Games than in the past); Christine
Brennan, At Olympics, Women Show New Strength; Female Athletes
Grow in Size and Stature, WASH. POST, July 18, 1996, at A1
(commenting that television coverage and viewer ratings were higher
than ever for womens’ contests). Overall, female athletes on the 1996
United States Olympic team won a total of thirty-eight medals; in fact,
the U.S. Women’s Basketball, Soccer and Softball teams won gold
medals in front of sell-out crowds. See Christine Brennan, U.S. Women
Look Good in Gold; As Games End, Future is Now, WASH. POST, Aug.
5, 1996, at C5; see also Sports, Female Athletes and the Law, TAMPA
TRIB., Mar. 12, 1997, at 12, available in 1997 WL 7039426 (explaining
that “American women dominated gymnastics, track and field, and
basketball”).
2
. See Johnette Howard, Golden Girls: a Spirited, Close Knit and
Talented U.S. Women’s Team Showed its Mettle by Defeating Favored
Canada to Win the Sport’s First Games Championship, SPORTS
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women’s professional basketball league, the Women’s National
Basketball Association (WNBA).3 In addition, more than 135,000
women participate in intercollegiate athletics,4 an increase from 30,000
in 1971.5 Title IX of the Education Amendments of 19726 has been
ILLUSTRATED, Mar. 2, 1998, at 32, available in 1998 WL 8979388.
3
. See Carla Fried, One on One ABL vs. WNBA: Two Competing
Leagues, Two Different Seasons, Two Distict Philosophies. We Take
Stock and Offer One Bottom Line, SPORTS ILLUSTRATED M AG., Sept. 2,
1997, at 70, available in 1997 WL 12989124 (stating that “[o]ptimists
interpret the abundance of action as a sign that women’s basketball has
arrived.”). In addition, the Fried article speaks very highly about the
newly created women’s professional basketball leagues:
Talk about a full-court press. From the tip-off of the inaugural season of
the American Basketball League last Oct[ober] 18 through the
championship game of the Women’s National Basketball Association on
Aug[ust] 30— a period of barely 10 months— nearly 300 women’s
professional games have been played in U.S. arenas. That’s a tremendous
amount of court time for a sport that has never been able to sustain any
women’s professional league in this country for longer than a few
desultory seasons.
Id.
4
. See Note, Cheering on Women and Girls in Sports: Using Title IX
to Fight Gender Role Oppression, 110 HARV. L. R EV. 1627, 1627
(1997) (citing Women’s Sports Foundation, Total Number of
Participants in High School and College I (Oct. 28, 1996) (unpublished
fact sheet, on file with the Harvard Law Library)); see also Diane
Heckman, Women & Athletics: A Twenty Year Retrospective on Title IX,
9 U. MIAMI ENT. & SPORTS L. R EV. 1, 2 n.5 (1992) (explaining that
since 1972, the total number of female collegiate athletes has increased
from 66,000 to greater than 150,000); Cynthia J. Harris, Note, The
Reform of Women’s Intercollegiate Athletics: Title IX, Equal
Protection, and Supplemental Methods, 20 CAP. U. L. R EV. 691, 704
(1991) (noting that there has been an increase in the total anumber of
intercollegiate athletic teams that universities offer its female students,
from an average of 2.5 sports in the years before Title IX to an average
of 7.31 in 1988).
5
. See Jere Longman, How the Women Won, N.Y. TIMES M AG., June
23, 1996, at 26. In addition, in Pederson v. Louisiana State University,
the court aptly noted that today “females who participate in varsity
sport[s] are athletes who happen to be female and not females who
happen to wish to be athletes, and . . . today’s athletic programs
encompass both male and female sports rather than being two separate
worlds.” Pederson v. Louisiana State Univ., 912 F. Supp. 892, 920
(M.D. La. 1996). Additionally, the Department of Education’s Office of
Civil Rights
(OCR) has stated that:
Participation by women in sports is growing rapidly. During the period
from 1971-1978, for example, the number of female participants in
organized high school sports increased from 294,000 to 2,083,000— an
increase of over 600 percent . . . . The growth in athletic participation by
high school women has been reflected on the campuses of the nation’s
colleges and universities. During the period from 1971-1976 . . . the
number of women participating in intramural sports increased 108 percent
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given credit for much of women’s recent athletic success.7 With
regard to the unprecedented recent success of female athletes, it seems
very appropriate to take a closer look at whether men are still more
likely to participate in sports than women.8
Title IX bars gender discrimination in all education programs and
activities receiving federal funding.9 Due to the traditional female
underrepresentation in athletic programs at colleges and universities across
the nation,10 Title IX has sparked an onslaught of women athletes seeking
from 276,167 to 576,167. In club sports, the number of women
participants increased from 16,386 to 25,541 or 55 percent. In
intercollegiate sports, women’s participation increased 102 percent from
31,652 to 64,375. These developments reflect the growing interest of
women in competitive athletics, as well as the efforts of colleges and
universities to accommodate those interests.
Title IX of the Education Amendments of 1972: A Policy Interpretation:
Title IX & Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,419 (1979)
(codified at 45 C.F.R. § 86) [hereinafter Policy Interpretation].
Furthermore, in as early as 1971, “fewer than 300,000 high-school girls
played interscholastic sports. Today, that number is 2.4 million. In
1995, women comprised 37 percent of college student athletes,
compared to 15 percent in 1972.” Norma V. Cantu, Q: Does
Government Require “Proportional Representation” for Women in
College Sports? No: “Proportional Representation” is not and Never
Has Been Required by the Government, INSIGHT M AG., Aug. 3, 1998, at
25, available in 1998 WL 9105681.
6
. Education Amendments of 1972, Pub. L. No. 92-318, §§ 901-07,
86 Stat. 235 (codified as amended at 20 U.S.C. §§ 1681-88 (1994)).
7
. See Cohen v. Brown Univ., 101 F.3d 155, 188 (1st Cir. 1996)
(stating that “[t]here can be no doubt that Title IX has changed the face
of women’s sports as well as our society’s interst in and attitude toward
women athletes and women’s sports.”). In addition, many
commentators have suggested that “[s]ince . . . [Title IX] was enacted
26 years ago, girls and women have made tremendous strides, both in
academics and athletics.” Cantu, supra note 5, at 25; see also supra,
text accompanying note 1.
8
. See generally Matt Lorenz, Ideal, Reality and Sports
Participation in the NCAA, ST. PETERSBURG TIMES, Sept. 5, 1993, at D1
(reporting that Little League Baseball had 2.2 million participants in
1992, almost all of them boys, while Little League Softball had only
480,000 players, all of whom were girls). Women tend to watch less
and participate less in sports. See id. While there are many reasons,
some social and some personal, the great divide between overall male
and female interest in sports is a fact of American life. See id.
9
. 20 U.S.C. §§ 1681-1688 (1994). Title IX provides in relevant
part: “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving
Federal financial assistance . . . .” Id.
§ 1681(a); see also infra
notes 30-45 and accompanying text.
10
. The terms “universities,” “colleges,” “schools” and “institutions”
are used
interchangeably throughout this Comment to denote all institutions of
higher education.
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justice from the courts.11 While the federal courts have been very generous
to these female athletes,12 men seeking to reinstate their own discontinued or
downgraded teams “have not scored a single victory in their reverse
discrimination attempts.”13
As a result of the federal courts’ interpretations of Title IX, men’s equal
protection rights have been walked over by “an unconstitutional quota system
that requires women’s interests and abilities to be met at a higher degree than
those of men.”14 Although Title IX prohibits gender-based discrimination by
universities receiving federal funding, this statute does not require “any
educational institution to grant preferential or disparate treatment to the
members of one sex on account of an imbalance which may exist with
respect to the total number or percentage of persons of that sex participating
in . . . [a] federally supported program or activity.”15 Ironically, it seems as
11
. See generally Horner v. Kentucky High Sch. Athletic Ass’n, 43
F.3d 265 (6th Cir. 1994) (holding that the school must effectively
accommodate the interests of fast-pitch softball players); Pederson v.
Louisiana State Univ., 912 F. Supp. 892 (M.D. La. 1996) (ordering the
university to “immediately and effectively accommodate LSU’s female
student population pursuant to Title IX . . . .”); Roberts v. Colorado
State Univ., 814 F. Supp. 1507 (D. Colo. 1993) (issuing a permanent
injunction ordering the University to reinstate women’s varsity fast-pitch
softball team that was discontinued in violation of Title IX), aff’d in
part, rev’d in part, 998 F.2d 824 (10th Cir. 1993); Favia v. Indiana
Univ. of Penn., 812 F. Supp. 578 (W.D. Penn. 1993), aff’d, 7 F.3d 332
(3rd Cir. 1993) (holding that the university violated Title IX “by failing
to provide its female students with proportionate opportunities to
participate in intercollegiate athletics”); Cook v. Colgate Univ., 802 F.
Supp. 737 (N.D.N.Y. 1992) (stating that Colgate must grant varsity
status to women’s ice hockey), ) vac., 992 F.2d 17 (2nd Cir. 1993).
12
. See supra note 11.
13
. Eugene G. Bernardo, II, Comment, Unsportsmanlike Conduct:
Title IX and Cohen v. Brown University, 2 ROGER W ILLIAMS U. L. R EV.
305, 307 (1996) (footnote omitted); see also generally Lichten v. State
Univ., 646 N.Y.S.2d 402 (App. Div. 1996) (concluding that elimination
of men’s tennis, wrestling, and swimming was made in compliance with
relevant university procedures); Gonyo v. Drake Univ., 879 F. Supp.
1000 (S.D. Iowa 1995) (holding that elimination of wrestling program
did not violate Title IX); Kelly v. Board of Trustees, 832 F. Supp. 237
(C.D. Ill. 1993) (stating that elimination of the men’s swimming team,
as opposed to the women’s swimming team did not violate Title IX),
aff’d, 35 F.3d 265 (7th Cir. 1994). Furthermore, “since 1982, the
National Collegiate Athletic Association, or NCAA reports that 99
[universities] have discontinued men’s wrestling and 64 have eliminated
men’s swimming.” Jessica Gavora, College Women Get More Than
Their Sporting Chance, INSIGHT M AG., Jan. 22, 1996, at 25, available
in 1996 WL 8310715.
14
. Bernardo, supra note 13, at 361-62.
15
. 20 U.S.C. § 1681(b) (1994).
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though the purpose of Title IX legislation is being set aside in order to
promote a de facto quota system.16
The most developed judicial interpretation of Title IX occurred throughout
the Cohen v. Brown University battle from 1991 to 1996.17 The importance
of this action for the development of Title IX jurisprudence up to this point is
astounding. Cohen presented the Court of Appeals for the First Circuit with
a novel issue.18 The First Circuit realized that the issue of Title IX’s
application to intercollegiate athletics was one of first impression at the
federal court of appeals level; the Court therefore engaged in an in-depth
Title IX analysis.19 At the end of the Cohen battle, all four courts (at both
16
. It is clear that universities have attempted to comply with Title IX
legislation; however, they have done so by eliminating men’s teams
while creating, upgrading or reinstating women’s teams. Boston
University recently dropped its football program due to Title IX
pressures, San Francisco University cut football after 64 years, Colgate
University no longer continues men’s baseball after 107 years, Cornell
University’s men’s fencing team was discontinued after 98 years,
Princeton University ended its wrestling program for fear of litigation
due to an inability to satisfy “proportionality,” and UCLA dropped its
swimming and diving team that had produced 16 Olympic Gold
Medalists. See Craig L. Hymowitz, Losers on the Level Playing Field:
How Men’s Sports Got Sacked by Quotas, Bureaucrats and Title IX,
W ASH. POST, Sept. 24, 1995, at C5. Since 1982, overall, 99 schools
have dropped men’s wrestling and 64 have discontinued swimming and
diving programs. Id.; see also Jessica Gavora, supra note 13, at 25
(suggesting that women’s recent success has been due to men’s
regression); Cantu, supra note 5, at 25 (stating that “[n]othing in Title
IX or in OCR’s enforcement policy requires or encourages schools to cut
men’s sports”). As the cases above failed to show, action by a school to
cut men’s teams should not, and in fact does not help a university
establish compliance with Title IX; however, neither Title IX nor the
OCR regulations require or encourage this end to meet its goals. See id.
Since there are so many options and other positive ways to comply with
Title IX’s mandates which will not deprive either gender of their own
athletic opportunities, it is not reasonable for any school to say that “it
was forced by Title IX to cut men’s teams.” Id.
17
. See Cohen v. Brown Univ., 809 F. Supp. 978 (D.R.I. 1992) aff’d,
991 F.2d 888 (1st Cir. 1993), aff’d in part, rev’d in part, 101 F.3d 155
(1st Cir. 1996) [hereinafter Cohen I]; Cohen v. Brown Univ., 991 F.2d
888 (1st Cir. 1993) [hereinafter Cohen II]; Cohen v. Brown Univ., 879
F. Supp. 185 (D.R.I. 1995) [hereinafter Cohen III]; Cohen v. Brown
Univ., 101 F.3d 155 (1st Cir. 1996) [hereinafter Cohen IV]. All four
Cohen cases follow each other’s holding that Brown had violated Title
IX and agree on nearly every legal issue. Throughout this Comment, the
four cases will be referred to in the aggregate as “Cohen” or the “Cohen
court.”
18
. See Cohen II, 991 F.2d at 891; see also infra notes 115-59 and
accompanying text.
19
. See Cohen II, 991 F.2d at 893.
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the district court and court of appeals levels) were in agreement that Brown
University was in violation of Title IX, because it had failed to provide its
women athletes with an equal opportunity to participate in its intercollegiate
athletic program.20
The impact of this judicial interpretation of Title IX will surely lead to
substantial changes throughout American colleges’ and universities’ athletic
departments. Unfortunately, however, upon close scrutiny, the Cohen
court’s interpretation goes beyond the intentions of Congress.21 The Cohen
courts’ application of Title IX ultimately required Brown University to
allocate its athletic department’s resources in a “quota-based scheme.”22
This Comment analyzes the Cohen court’s interpretation of Title IX and
determines whether its reading of the legislation promotes a de facto quota
scheme. Part II focuses on the origins and development of Title IX, the
sources of Title IX interpretation, and the scope of Title IX application.23
Part III analyzes the judicial interpretation of Title IX as developed
throughout the Cohen v. Brown University battle, the courts’ holdings and
reasoning, and the enlightening dissent of Chief Justice Torruella in the final
phases of this case.24
In the analysis, Part IV.A focuses on the correct interpretation of Title
IX.25 Part IV.B explains what a quota-based scheme is.26 Part IV.C shows
how the Cohen court misinterpreted Title IX through its use of the Effective
Accommodation test.27 Part IV.D expands on why the measuring of interest
levels would have led to a different result.28 Finally, Part V, the conclusion,
proposes a more effective reading of Title IX and suggests a better
application of Title IX for the future that will meet certain constitutional
mandates.29
II. BACKGROUND — TITLE IX
20
. See generally Cohen I, 809 F. Supp. 978 (D.R.I. 1992); Cohen II,
991 F.2d 888 (1st Cir. 1993); Cohen III, 991 F. Supp. 185 (D.R.I.
1995); Cohen IV, 101 F.3d 155 (1st Cir. 1996); see also infra notes
135-40 and accompanying text.
21
. See infra notes 160-81 and accompanying text.
22
. Cohen IV, 101 F.3d 155, 195 (Torruella, C.J., dissenting) (stating
“I am less interested in the actual term ‘quota’ than the legally
cognizable characteristics that render a quota scheme impermissible.
And those characteristics are present here in spades”).
23
. See infra notes 30-114and accompanying text.
24
. See infra notes 115-59 and accompanying text.
25
. See infra notes 160-81 and accompanying text.
26
. See infra notes 182-94 and accompanying text.
27
. See infra notes 195-254 and accompanying text.
28
. See infra notes 255-74 and accompanying text.
29
. See infra notes 275-93 and accompanying text.
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A. The Origins and Development of Title IX
Title IX was developed to help eliminate discrimination.30 This
statute does not exclusively govern intercollegiate athletics, but rather
it addresses discrimination within educational institutions receiving
federal funding.31 In fact, the conception of Title IX seems to have
come from a House of Representatives Special Subcommittee Hearing
on education.32 Without a committee report and foregoing any formal
30
. In passing Title IX, Congress had two objectives: first “‘to avoid
the use of federal resources to support discriminatory practices,’ and
[second,] ‘to provide individual citizens [with] effective protection
against those practices.’” Cohen IV, 101 F.3d at 165 (citing Cannon v.
University of Chicago, 441 U.S. 677, 704 (1979)). To accomplish these
fundamental goals of the statute, Congress, through 20 U.S.C. §1682,
directed federal agencies directly funding educational institutions to
develop procedures for terminating funding when those institutions are
found in violation of Title IX. See 20 U.S.C. § 1682 (1994).
31
. See Cohen III, 879 F. Supp. at 194; see also Cohen II, 991 F.2d
at 893 (commenting that in fact, the congressional debate on Title IX
contained only two mentions of intercollegiate athletics).
32
. See Pub. L. No. 88-352, 601, 78 Stat. 241, 252 (codified as
amended at 42 U.S.C. § 2000(d) (1994)); see also North Haven Bd. of
Educ. v. Bell, 456 U.S. 512, 523 n.13 (citing Discrimination Against
Women: Hearings on S. 805 of H.R. 16098 Before the Special
Subcomm. on Educ. of the House Comm. on Educ. and Labor, 91st
Cong., 2d Sess. (1970)). Originally, Title IX was developed at hearings
on gender discrimination in education, held in 1970 by a special House
Subcommittee on Education chaired by Representative Green of Oregon.
See id. (citation omitted). Most of the discussions, however, focused on
discrimination in employment. See id. At this hearing, the
subcommittee declared that Congress has authority to mandate that no
person shall be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving
Federal financial assistance. See 42 U.S.C. § 2000(d) (1994); see also
North Haven, 456 U.S. at 523 n.13. This proposal never emerged from
committee. See id. If this provision had emerged from committee, it
would have extended to discrimination based on gender, all of the
prohibitions within Title VI of the Civil Rights Act of 1964, and overall,
would have amended the Civil Rights Act of 1957 to include gender
discrimination. See id.
In response to the past hearings, in 1971, Senator Bayh introduced
an amendment to the Education Amendments of 1971. See id. This
amendment would have denied federal funding to recipients who
discriminated against women. See id. Senator Bayh considered this
amendment reflective of the prohibitions against race-based
discrimination within Title VI of the Civil Rights Act of 1964. See id.
(referring to 117 CONG. R EC. 30,155, 30,403 (1971)). Congress
ultimately enacted Title IX of the Educational Amendments in response
to the evident “pervasive discrimination against women with respect to
educational opportunities.” 118 CONG. R EC. 5804 (1972) (statements by
Senator Bayh); see also North Haven, 456 U.S. at 523 n.13.
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hearings, Congress adopted Title IX as a floor amendment.33 Finally,
in 1972, Congress enacted Title IX of the Education Amendments,34
which wholeheartedly prohibit any educational institution receiving
federal financial assistance from discriminating against students based
on gender.35 The actual passage of this statute, however, left little
secondary legislative material from which to infer its intended purpose,
interpretation and application.36
In the wake of Title IX’s infant years, “the broad proscriptive
language [of the statute has] caused considerable consternation . . .
.”37 To help clear up some of the confusion, two years after the
passage of the Act, in 1974, Congress went to work again.38 It first
amended Title IX to make the Act directly applicable to intercollegiate
athletics.39 Next, Congress directed the agency responsible for
administering Title IX40 to provide regulations for the enforcement
33
. See Jill K. Johnson, Title IX and Intercollegiate Athletics:
Current Judicial Interpretation of the Standards for Compliance, 74
B.U. L. R EV. 553, 557 (1994) (citing Claudia S. Lewis, Note, Title IX of
the 1972 Education Amendments: Harmonizing its Restrictive
Language With its Broad Remedial Purpose, 51 FORDHAM L. R EV.
1043, 1050-55, 1057-58 (1983)).
34
. Education Amendments of 1972, Pub. L. No. 92-318, §§ 901-07,
86 Stat. 235, 373-75 (codified as amended at 20 U.S.C. §§ 1681-1688
(1994)).
35
. See 20 U.S.C. § 1681(a) (1994) (providing that “[n]o person in
the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance . . . .”).
36
. See Cohen II, 991 F.2d at 893 (explaining that part of the
confusion in applying Title IX has been due to a lack of secondary
legislative materials).
37
. Id.
38
. See id. at 893-95.
39
. See Education Amendments of 1974, Pub. L. No. 93-380, § 844,
88 Stat. 612 (codified at 20 U.S.C. § 1681 (1994)) [hereinafter Javits
Amendment]. This amendment requires that “[t]he Secretary [of the
OCR] shall prepare and publish, not later than 30 days after the date of
enactment of this Act, proposed regulations implementing the provisions
of [T]itle IX of the Education amendments of 1972 relating to the
prohibition of sex discrimination in federally assisted education
programs which shall include with respect to intercollegiate athletic
activities reasonable provisions considering the nature of the particular
sports.” Id.
40
. The agency now responsible for administering Title IX is the
Department of Education (DED), through its Office of Civil Rights
(OCR). See Cohen III, 879 F. Supp. at 194. This responsibility shifted
from the Department of Health, Education and Welfare (HEW) when, in
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and application of the Act.41 The relevant regulations promulgated by
the Department of Education’s OCR specifically addressing athletics
are found in 34 C.F.R. § 106.37(c)42 and § 106.41.43 The main goal of
1979, HEW was split into the Department of Health and Human
Services (HHS) and the DED. See Cohen II, 991 F.2d at 895 (referring
to 20 U.S.C. §§ 3401-3510 (1988)). Congress clearly shifted the
HEW’s regulatory duties to the DED. See id. (citations omitted). In
addition, the regulations and agency documents promulgated by HEW
were later adopted by the DED—sending a clear signal that the DED
was satisfied with regulations created by the HEW. See id. (citations
omitted).
41
. See 44 Fed. Reg. 71,413 (1979). In 1975, HEW promulgated
regulations in order to clarify Title IX’s application to college athletics.
See 34 C.F.R. §§ 106.37(c), 106.41(a)-(c) (1998). Although the OCR’s
proposed regulations originally had been codified at 45 C.F.R. § 86, in
1980 the regulations were recodified at 34 C.F.R. § 106. See 45 Fed.
Reg. 30,802, 30,962-63 (1980). The relevant regulations will be
hereinafter referred to pursuant to the recodification. Promulgation of
the OCR’s regulations created an influx of 700 public comments
regarding athletics. See 44 Fed. Reg. at 71,413; see also Bernardo,
supra note 13, at 311 n.32 (referring to Sex Discrimination Regulations:
Hearings Before the Subcomm. on Post Secondary Education of the
House Comm. on Education and Labor, 94th Cong. 436-42 (1975)
(testimony of Caspar Weinberger, Secretary of HEW) which said “the
most important issue in the United States today is intercollegiate
athletics, because we have an enormous volume of comments about
them”) (citation omitted). The proposed regulations were handed over
to Congress for a forty-five day review. See 44 Fed. Reg. at 71,413. If
found to be inconsistent with the proposed statute, Congress had the
power to flat out reject the proposed regulations. See id. Congress did
not object to the regulations and proceeded to issue the final version in
July of 1975. See 34 C.F.R. § 106 (1998).
42
. 34 C.F.R. § 106.37(c) (1998). The regulation provides in relevant
part:
(c) Athletic Scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it 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.
(2) Separate athletic scholarships or grants-in-aid for members of each sex
may be provided as part of separate athletic teams for members of each
sex to the extent consistent with this paragraph and § 106.41.
Id.
43
. 34 C.F.R. regulation § 106.41(a)-(c) (1998). The regulation
provides in pertinent part:
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person or otherwise be discriminated against in any
interscholastic, intercollegiate, club or intramural athletics offered by a
recipient, and no recipient shall provide any such athletics separately on
such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of
this section, a recipient may operate or sponsor separate teams for
members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport . . . .
(c) Equal opportunity. A recipient which operates or sponsors
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34 C.F.R. § 106.37(c) is to ensure that scholarships are awarded in
proportion to each gender’s participation rates in athletics.44 On a
similar note, 34 C.F.R. § 106.41 regulates effective accommodation of
each gender’s interests and abilities in regard to funding.45
B. Sources of Title IX Interpretation
1. The Policy Interpretation
interscholastic, intercollegiate, club or intramural athletics shall provide
equal athletic opportunity for members of both sexes. In determining
whether equal opportunities are available the Director will consider,
among other factors:
(1) Whether the selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both sexes;
(2)The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
Provision of locker rooms, practice and competitive facilities;
Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal
expenditures for male and female teams if a recipient operates or sponsors
separate teams will not constitute noncompliance with this section, but the
Assistant Secretary may consider the failure to provide necessary funds for
teams for one sex in assessing equality of opportunity for members of each
sex.
34 C.F.R. § 106.41(a)-(c). This section almost directly reflects what
Title IX purports, but only specifically applies its regulations to
intercollegiate athletics.
44
. See Cohen I, 809 F. Supp. at 983. This section is not at issue in
the Cohen case because Brown is an Ivy League university that does not
distribute athletic scholarships to its student athletes. See Cohen III, 879
F. Supp. at 195 n.24.
45
. See Cohen I, 809 F. Supp. at 983. The Cohen court explained that
this regulation has a broader scope and addresses the critical issue in the
case at bar. See id. In addition, in the first appeal, the Cohen court held
that “[Brown’s] failure effectively to accommodate both genders under
§106.41(c)(1) [was] sufficient to establish a violation of Title IX.”
Cohen IV, 101 F.3d at 166 (explaining the evaluation of the OCR’s
regulations by the Cohen II court). The court did not, however, focus on
the other nine factors under 34 C.F.R. § 106.41(c) because they
concerned “‘treatment issues,’” those of which were settled by the
parties, and “concern[ed] only university-funded varsity teams as to
which there [was] no dispute regarding status . . . .” Cohen III, 879 F.
Supp. at 193.
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Despite the OCR’s regulations which applied Title IX to intercollegiate
athletics, in the three years following its issuance, interpretation of the Act46
proved to be problematic in that it seemingly invoked a general fear of
offending its mandates within colleges and universities across the
nation.47 In 1979, the OCR published in the Federal Register an
official Policy Interpretation “[i]n order to encourage self-policing and
thereby winnow complaints . . . .”48 The 1979 Policy Interpretation
identified three areas of concentration for the OCR to assess a
school’s compliance with the regulations.49 Section “A” of the Policy
Interpretation focuses on “[a]thletic [f]inancial [a]ssistance,” as
46
. Policy Interpretation, 44 Fed. Reg. 17,413 (1979). The OCR
developed the Policy Interpretation to provide colleges and universities
with:
the Department of Health, Education and Welfare’s [for our purposes,
DED] interpretation of the intercollegiate athletic provisions of Title IX of
the Education Amendments of 1972 and its implementing regulation.
Title IX prohibits educational programs and institutions funded or
otherwise supported by the Department from discriminating on the basis
of sex. The Department published a proposed Policy Interpretation for
public comment on December 11, 1978. Over 700 comments reflecting a
broad range of opinion were received. In addition [DED] staff visited
eight universities during June and July, 1979, to see how the proposed
policy and other suggested alternatives would apply in actual practice at
individual campuses. The final Policy Interpretation reflects the many
comments [DED] received and the results of the individual campus visits.
Id.
47
. See Cohen II, 991 F.2d at 896. The Department of Education
received over one hundred discrimination complaints in the following
three years involving greater than fifty institutions. See id. Due to this
phenomenon, the HEN (now DED) decided to provide further assistance
to institutions by developing guidance for and defining what constitutes
compliance under Title IX. See id. Through the Policy Interpretation it
therefore “provide[d] a framework within which [a university’s]
complaints can be resolved . . .” and also recommended specific
compliance requirements for intercollegiate athletic programs. Policy
Interpretation, 44 Fed. Reg. 71,413, 71,413 (1979).
48
. Id. The Policy Interpretation solely addresses gender
discrimination in intercollegiate athletics. See Policy Interpretation, 44
Fed. Reg. 71,413, 71,413 (1979). The purpose of this eleven page
document is to “clarif[y] the obligations which recipients of Federal aid
have under Title IX to provide equal opportunities in athletic programs.”
Id. at 71,415. Specifically, the “Policy Interpretation provides a means
to assess an institution’s compliance with the equal opportunity
requirements of the regulation which are set forth at [34 C.F.R. §
106.37(c) and §106.41(c)].” Id. at 71,415. The Policy Interpretation
states that it is “designed specifically for intercollegiate athletics,” but
its guidelines will apply to club and intramural athletic programs as
well. Id. at 71,413.
49
. See Policy Interpretation, 44 Fed. Reg. at 71,415-17.
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codified in 34 C.F.R. §106.37(c) (1998).50 Section “B” addresses
“[e]quivalence in [o]ther [a]thletic [b]enefits and [o]pportunities,” as
codified in sections 34 C.F.R.
§ 106.41(c)(2)-(9) (1998).51 The
final section discusses the “[e]ffective [a]ccommodation of [s]tudent
[i]nterests and [a]bilities,” listed as the first element in 34 C.F.R. §
106.41(c).52 Many of the courts that have dealt with the interpretation
of Title IX have adopted and used this formulation, and have held
“that a university violates Title IX if it ineffectively accommodates
student interests and abilities regardless of its performance in other
Title IX areas.”53
The Policy Interpretation’s first section directly mirrors 34 C.F.R. §
106.37(c).54 Following this regulatory section, the Policy
Interpretation mandates that universities that award scholarships to
their athletes must provide them to each gender without discrimination
and in direct proportion to the numbers of that gender directly
participating in intercollegiate athletics within that university.55 In
addition, this section allows for members of each gender to receive
separate athletic aid “as part of separate athletic teams for members of
each sex . . .” as long as the university does not purposely discriminate
against either gender.56 To comply with this section, a university must
50
. Id.; see also 34 C.F.R. § 106.37(c) (1998); supra notes 54-59 and
accompanying text. The financial assistance standards are not important
to the analysis of the Cohen litigation because Brown University does
not award athletic scholarships and the plaintiff class never alleged that
Brown discriminated based on gender in its distribution of financial aid
generally. See Cohen II, 991 F.2d at 897 n.12.
51
. Policy Interpretation, 44 Fed. Reg. at 71,415; see also infra notes
60-65 and accompanying text. The athletic equivalence standards are
also not relevant in the Cohen. See Cohen II, 991 F.2d at 897 n.12.
The second section within the Policy Interpretation also raised two
additional criteria to be examined in athletic programs: (1) recruitment;
and (2) support services. See Cohen I, 809 F. Supp. at 984. These
additional criteria, however, were not a factor in Cohen, and will not be
specifically discussed within this Comment.
52
. Policy Interpretation, 44 Fed. Reg. at 71,417; see also infra notes
66-80. Cohen focused on this, the “Effective Accommodation” section.
53
. Cohen II, 991 F.2d at 897; see also e.g., Roberts v. Colorado
State Univ., 814 F. Supp. 1507, 1510-11 (D. Colo. 1993), aff’d in part,
rev’d in part, 998 F.2d 824 (10th Cir. 1993); Favia v. Indiana Univ. of
Pa., 812 F. Supp. 578, 584-85 (W.D. Pa. 1993), aff’d, 7 F.3d 332 (3d
Cir. 1993).
54
. Policy Interpretation, 44 Fed. Reg. 71,413, 71,415; see also 34
C.F.R. § 106.37 (c) (1998); infra notes 55-59.
55
. See 34 C.F.R. § 106.37(c) (1998).
56
. Id.
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make scholarship funds available in substantial proportion to each
gender’s participation rate in athletics.57 Even if a university only
provides what would seem to be uneven awards of athletic
scholarships, the Policy Interpretation in section A has provided for
certain “legitimate [and] nondiscriminatory” factors which allow the
school to comply regardless of disparity in the resulting ratios.58 This
section, however, was irrelevant in Cohen, because as a member of the
Ivy League, Brown University does not distribute athletic
scholarships.59
Section “B” of the Policy Interpretation requires a university to
meet the requirements of 34 C.F.R. § 106.41(c)(2)-(10).60
Specifically, to comply with this regulation, a school’s athletic
department must offer equal opportunities to members of both genders
in :
Provision of equipment and supplies; [s]cheduling of games and practice
times; [t]ravel and per diem allowance; [o]pportunity to receive coaching and
academic tutoring; [a]ssignment and compensation of coaches and tutors;
[p]rovision of locker rooms, practice and competitive facilities; [p]rovision of
medical and training facilities and services; [p]rovision of housing and dining
facilities and services; [and] [p]ublicity.61
To comply with this second section, it is necessary to compare the
benefits, opportunities and overall treatment of each gender– through
this comparison, all program components should be “equal or equal in
57
. Policy Interpretation, 44 Fed. Reg. at 71,415. To mathematically
determine compliance, one must divide the amount of the scholarship
awarded to each gender by the aggregate number of male and female
athletes–this will create a ratio. See id. After comparing the two ratios,
a university will have complied with section one of the Policy
Interpretation if these ratios are “substantially equal.” See id. The OCR
does not include need-based or merit-based aid provided for athletes in
its analysis of this section unless “‘there are allegations . . . [that]
award[s are given] differently to athletes than the general student body
or on the basis of sex.’” Bernardo, supra note 13, at 316 n. 67 (quoting
OFFICE OF C IVIL R IGHTS, DEPARTMENT OF EDUCATION, TITLE IX
ATHLETICS INVESTIGATOR’S M ANUAL (1990)) (alterations in original).
58
. Policy Interpretation, 44 Fed. Reg. at 71,415. Two of these
factors are: (1) a higher tuition for out-of-state students attending a
university; and (2) reasonable decisions regarding program
development. See id.
59
. See Cohen I, 809 F. Supp. at 989.
60
. Policy Interpretation, 44 Fed. Reg. at 71,415 (1979).
61
. 34 C.F.R. § 106.41(c)(2)-(10). This section also provides that mere
“unequal aggregate expenditures for members of each sex . . . will not constitute
noncompliance with this section . . . but may [be] consider[ed] in assess[ment] [of]
equality of opportunit[ies] for members of each sex.” 34 C.F.R. § 106.41(c).
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effect.”62 This standard, however, emphasizes that identical benefits
for each gender are not necessary.63
In addition to the equal opportunity requirement pursuant to this
section, the Policy Interpretation offers guidance in two additional
areas: the recruitment of student athletes and the provision of athlete
support services.64 Moreover, similar nondiscriminatory factors such
as those presented in section “A” of the Policy Interpretation allow a
university to remain in compliance with the Act despite unequal
provisions for each gender.65
The Policy Interpretation, focusing on section “C” for compliance,
established in this third section a three-part test,66 a two-part test,67 and
62
Policy Interpretation, 44 Fed. Reg. at 71,415.
See id.
64
See id. at 71,417. A recruitment practices provision exists to
enable determination whether equal opportunity will necessitate changes
within that area. See id. The support services provision determines the
relative amount of administrative and clerical services provided to each
team and specifically to each gender’s athletic program. See id. As
stated previously, though, these additional criteria were never a factor in
Cohen. See supra notes 52-53 and accompanying text.
65
. See Policy Interpretation, 44 Fed. Reg. at 71,416. Certain specific
illustrations for disparate treatment in men’s and women’s athletics are:
sports that require more resources because the nature of the game (i.e.,
contact sports); special circumstances (i.e., an influx of first year
players); and special opportunity expenses (i.e., crowd control at
tournament games). See id. at 71,415-16.
66
. This test, often labeled the “Effective Accommodation” test, has
been the main test used by almost all courts scrutinizing Title IX in
relation to intercollegiate athletics. See Cohen III, 991 F.2d at 897; see
also infra notes 73-80 and accompanying text. Although many courts
name this three-prong test alone the “Effective Accommodation” Test,
the entire process of evaluating a university’s compliance with Title IX
(including the three-prong, two-prong and additional factors), are in fact
considered the Policy Interpretation’s “Effective Accommodation”
section of analysis falling under 34 C.F.R. § 106.41(c) (1998). See
Policy Interpretation, 44 Fed. Reg. at 71,417.
67
. The two-part test is applied only after the effective
accommodation test. See Cohen III, 879 F. Supp. at 196. The two
prongs of this test measure compliance by examining:
(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.
Policy Interpretation, 44 Fed. Reg. at 71,418. This test was not at issue
in the Cohen case. The court was of the opinion that men and women
at the Brown University varsity level were equivalent and that their
63
.
.
.
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other factors68 to be considered in determining compliance under 34
C.F.R. § 106.41(c)(1).69 This section of the regulations requires that
the Director of Education at each individual university consider
“[w]hether the selection of sports and levels of competition effectively
accommodate[s] the interests and abilities of members of both sexes.”70
Generally speaking, Title IX’s purpose depends on equal opportunity
to participate.71 Because this third compliance section sets forth the
basis for such compliance, a university can actually violate Title IX
even if it passes the standards within the first two sections– “financial
assistance” and “athletic equivalence.”72
According to the Cohen courts, the most important of these three
sets of factors within the third section of Title IX compliance is the
three-prong Effective Accommodation test.73 The three-prong test
competitive schedules were also equivalent. See Cohen III, 879 F.
Supp. at 196.
68
. The Policy Interpretation’s “Effective Accommodation” analysis
also provides certain factors which should be considered in overall
compliance analysis:
a. Whether the policies of an institution are discriminatory in language or
effect; or
ustified nature in the benefits, treatment
services, or
opportunities afforded male and female athletes exist in the institution’s
program as a whole; or c. Whether disparities in individual segments of
the program with respect to benefits, treatment, services, or opportunities
are substantial enough in and of themselves to deny equality of athletic
opportunity.
Policy Interpretation, 44 Fed. Reg. at 71,418. These factors, like the
two-prong test above, were not the focus of the Title IX analysis in the
Cohen case.
69
. See Cohen IV, 101 F.3d at 166; see also Kelley v. Board of
Trustees, 35 F.3d 265, 268 (7th Cir. 1994) (explaining that in its
analysis of Title IX compliance, “[c]hief among these [tests], and of
primary concern . . . is [34 C.F.R. § 106.41(c)]”); Cohen II, 991 F.2d at
897 (labeling this one component as the “heartland” of equal
opportunity and the most important factor in the Cohen case).
70
. 34 C.F.R. § 106.41(c)(1) (1998). Courts in this area have
generally placed less weight on the “levels of competition” component.
See, e.g., Cohen I, 809 F. Supp. at 994 (stating “the competitive
schedules at Brown provide men and women with equivalently advanced
competitive opportunities”); see also Cohen III, 879 F.2d at 196 n.26
(opining that “competitive schedules offered to men and women at the
university funded varsity level are [usually] equivalent to each other . . .
.”). This area of analysis includes criteria reflecting scheduling and
“competitive regions” to determine whether competitive opportunities
are offered equally to both genders. See 34 C.F.R. § 106.41(c); see also
Cohen I, 809 F. Supp. at 994.
71
. See Cohen II, 991 F.2d at 897.
72
. Id.
73
. See Cohen IV, 101 F.3d at 166.
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consists of three “benchmarks,” of which a university must meet at
least one:74
(1) Whether intercollegiate level participation opportunities for male and female
students are provided in numbers substantially proportionate to their respective
enrollments;75 or
(2) Where the members of one sex have been and are underrepresented among
intercollegiate athletes, whether the institution can show a history and
continuing practice of program expansion which is demonstrably responsive to
the developing interest and abilities of the members of that sex;76 or
(3) Where the members of one sex are underrepresented among intercollegiate
athletes, and the institution cannot show a continuing practice of program
expansion such as that cited above, whether it can be demonstrated that the
interests and abilities of the members of that sex have been fully and effectively
accommodated by the present program.77
Since the great weight of analysis of compliance under the three-prong
test generally depends upon the last of the three benchmarks (and the
Cohen court’s analysis has specifically focused on the third
benchmark), compliance usually means that a university has realized
and has taken into consideration the athletic wants and needs of the
historically ignored sex, to the extent necessary by “upgrading the
competitive opportunities available to the historically disadvantaged
sex as warranted by developing abilities among the athletes of that sex
. . . until the opportunities for, and levels of, competition are equivalent
by gender.”78
Application of this three-prong “Effective Accommodation” test was
one of “the most hotly contested legal issue[s]” in Cohen.79 Due to its
74
. See Cohen II, 991 F.2d at 897.
Policy Interpretation, 44 Fed. Reg. at 71,418. The first benchmark provides
a “safe harbor” for those universities that have already distributed athletic
opportunities in numbers “substantially proportionate” to gender composition
within the student body. Cohen II, 991 F.2d at 897. This prong is important
because “a university which does not wish to engage in extensive compliance
analysis may stay on the sunny side of Title IX simply by maintaining gender
parity between its student body and its athletic line-up.” Id. at 897-98.
76
. Policy Interpretation, 44 Fed. Reg. at 71,418. Under this benchmark, if a
university is continuously increasing athletic opportunities to meet the wants and
needs of the “underrepresented gender,” and continues even as interests and
abilities of this gender increase, a school has effectively complied with Title IX.
Cohen II, 991 F.2d at 898.
77
. Policy Interpretation, 44 Fed. Reg. at 71,418. According to the third
benchmark, Title IX does not require that a university create teams for or provide
funding for disinterested students (one sex that is demonstrably less interested in
athletics). See Cohen II, 991 F.2d at 898.
78
. Cohen II, 991 F.2d at 898 (citing 44 Fed. Reg. at 71, 418).
79
. Bernardo, supra note 13, at 311.
75
.
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importance, it seems to have been used almost exclusively for
determining compliance with Title IX. As many scholars have stated,
“it is in exercising this test that courts have muddied the intent of the
legislation [Title IX], and converted a nondiscrimination statute into a
[de facto] quota system that violates equal protection.”80
2. Title IX Athletics Investigator’s Manual
To provide OCR investigators with further guidance in interpreting Title
IX, the OCR published the Title IX Athletics Investigator’s Manual in
1990.81 This additional tool could also prove helpful to universities
themselves; it discloses the steps and procedures the OCR
investigators use in determining Title IX compliance. The manual
generally tracks the outline of the Policy Interpretation— it outlines
separate sections for each of the thirteen “program components” listed
within its structure.82 Although the manual reccommends that all
thirteen areas be investigated, the OCR will limit its scrutiny “where
unique circumstances justify limiting a particular investigation . . . .”83
As it may have seemed justifiable due to past discrimination,
investigators then began concentrating exclusively on the Effective
Accommodation test in measuring Title IX compliance.84
80
Id. at 311 n.32.
See Cohen I, 809 F. Supp. at 984 (citing Office of Civil Rights,
Department of Education, Title IX Athletics Investigator’s Manual
(1990) (on file at New England Law Review)). The 1990 publication of
the Investigator’s Manual was designed to supersede earlier versions
issued in 1980 and 1982. See id., Introduction. This Comment,
however, like the Cohen court, focuses on the Policy Interpretation’s
guidelines for compliance.
82
. Office for Civil Rights, Department of Education, Title IX
Athletics Investigator’s Manual, at 7 (1990) [hereinafter Investigator’s
Manual]. The thirteen individual components are fit neatly within the
three levels of compliance as set forth in the regulations and Policy
Interpretation: (1) Athletic Scholarships, see 34 C.F.R. § 106.37 (c)
(1998); (2) Other Athletic Benefits and Opportunities: equipment and
supplies, scheduling, travel allowance, coaching and tutoring,
compensation of coaches and tutors, facilities, medical and training
services, housing and dining facilities, and publicity; plus recruitment
provisions and support services provisions, see 34 C.F.R. § 106.41
(c)(2)-(10) (1998); and (3) Effective Accommodation, see 34
C.F.R.§106.41(c)(1) (1998); see also supra notes 46-80 and
accompanying text.
83
. Investigator’s Manual, supra note 81, at 7; see also Roberts v.
Colorado State Univ., 814 F. Supp. 1507, 1510 (D. Colo. 1993) (stating
that “[a]ccording to the Investigator’s Manual, ‘the intercollegiate
athletics Policy Interpretation requires that OCR use an overall approach
and review the total athletics program for intercollegiate athletics
investigations’”).
84
. See Cohen II, 991 F.2d at 897.
81
.
.
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In its discussion regarding the three-prong Effective
Accommodation test, the manual provides that the three prongs “may
be considered consecutively” in assessing competitive opportunities
offered by a university.85 Additionally, its own three step analysis
instructions correspond with the three prongs offered by the Policy
Interpretation.86 The manual warns, however, not to consider the next
step in the test unless a university fails to comply with a previous
step.87 This explicit language reiterates Congress’ intent to offer three
different ways to comply with Title IX in the Effective
Accommodation area, however, it was also the same language which
led the Cohen court to interpret the analysis for each prong to rely on
compliance with the others.
In its description of the test, the manual further explains the details
of each prong. For Prong I, the manual commands that “there is no set
ratio that constitutes ‘substantially proportionate’ or that, when not
met, results in a disparity or a violation.”88 Instead, the OCR leaves
the definition of this term up to judicial interpretation.89 It is this
judicial freedom which caused the Cohen court to misinterpret the
meaning of “substantial proportionality.”
Prong II is satisfied, according to the Investigator’s Manual, as long
as a university has recently added sports to its athletic program.90 If
the investigators have found that a university has complied with this
requirement, they will further take note of “the number of participants
affected and the percentage of gain to each program.”91
The OCR did its best to provide guidance for all when it came to
Title IX compliance; with the statute, its regulations, the Policy
Interpretation and the Investigator’s Manual, the Cohen court had
plenty of guidance to apply Title IX as Congress had intended. Why
85
Investigator’s Manual, supra note 82, at 21.
See id. at 24-25.
87
See id.
88
Id. at 24. The manual does offer an example that would create an
ideal ratio, however: if a university’s “enrollment is 52% male and 48%
female, then, ideally, about 52% of the participation in the athletics
program should be male and 48% female.” Id. In addition, it explains
that based on OCR investigative experience, indications show that
“where budget restrictions have led a recipient to eliminate sports
previously offered . . . to women who are already underrepresented in the
institution’s athletic programs [,] . . . the institution may well be in
violation of [Prong I].” Id. at 27.
89
. See Investigator’s Manual, supra note 82, at 24-25.
90
. See id. at 24.
91
. Id.
86
.
.
.
.
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then, did its interpretation and application of the statute create so many
constitutional violations?
3. The Scope of Title IX
Even with the previous guidance of the OCR regulations and subsequent
addition of the Policy Interpretation, the broad language of Title IX “left
courts and educational institutions alike uncertain as to whether Congress
intended to subject every program within a university to Title IX’s
mandates.”92 Although the OCR did promulgate regulations in 1975
which included specific provisions for college athletics93 and did
publish its Policy Interpretation in 1979 which offered a more detailed
measure of equal athletic opportunity,94 universities were still not sure
whether Title IX was “‘program-specific,’” in that “its tenets applied
only to the program(s) which actually received federal funds . . .” or to
an entire university who receives federal funding.95
a. Grove City v. Bell
Because the majority of intercollegiate athletic departments do not receive
direct federal funding, most federal money for universities is channeled
92
. Jill Mulderink, Comment, Par for the Female Course: Cohen v.
Brown University Mandates an Equal Playing Field in Intercollegiate
Athletics, 22 J.C. & U.L. 111, 111 (1995) (footnotes omitted)
(explaining that Title IX did not specifically address whether its effects
could be applied to programs that did not benefit directly from federal
funds, even though the sponsoring university received federal funds
generally); see also Jennifer L. Henderson, Gender Equity in
Intercollegiate Athletics: A Commitment to Fairness, 5 SETON HALL J.
SPORT L. 133, 134-36 (1995); Catherine Pieronek, Note, A Clash of
Titans: College Football v. Title IX, 20 J.C. & U.L. 351, 354 (1994).
The academic world’s anxieties chiefly centered around identifying
which individual programs, particularly in terms of athletics, might
come within the scope of the discrimination provision, and how the
government would determine compliance. See Cohen II, 991 F.2d 888,
893 (1st Cir. 1993). Fueling these concerns was the fact that 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 resources,
a share that was “vastly disproportionate to the percentage of men in the
student body.” Id.
93
. See supra notes 30-45 and accompanying text.
94
. See supra notes 46-80 and accompanying text.
95
. Cohen II, 991 F.2d at 894 (citing Grove City College v. Bell, 465
U.S. 555,
574 (1984)). Grove City held that only programs within a university
that actually receives funding are considered within Title IX’s regulating
power. See Grove City, 465 U.S. at 574.
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through financial aid offices or invested directly through research grants.96 It
seemed to be understood, however, that Title IX’s coverage applied to
sub-departments of a university that received any financial assistance.97
This presumption was soon rebutted in 1984 when the Grove City
decision restricted Title IX, and it placed virtually all college athletic
programs beyond its reach.98
Under Title IX of the Education Amendments of 1972, a federally
assisted program must be identified before Title IX coverage is
triggered.99 Grove City College is a private, coed, liberal arts college,
96
See Cohen II, 991 F.2d at 894.
See Grove City, 465 U.S. at 562. Looking at the structure of the
Education Amendments of 1972, the statutory language of Title IX and
its legislative history, it seems obvious that Congress was aware that
student assistance programs established by the Amendments greatly
contributed to the financial aid of colleges and universities. See id. at
564. In addition, the language of Title IX contains “no hint that
Congress perceived a substantive difference between direct institutional
assistance and aid received by a school through its students.” Id.
Moreover, the Legislature’s use of the phrase “receiving federal
financial assistance” to include assistance to students who use the
particular funding at a particular university conclusively reveals that
Title IX coverage at these institutions should be applied just as strongly
when funds are granted directly to students rather than to the colleges’
and universities’ educational programs themselves. See id. at 563-70.
98
. See Cohen II, 991 F.2d at 894. Following the Supreme Court’s
decision in Grove City, the United States Department of Education
dropped 79 ongoing Title IX cases. See id. (citing Statements on Civil
Rights Restoration Act, DAILY LAB. R EP . (BNA) NO. 53, at D1 (Mar. 20,
1981)). What is ironic about the Grove City decision, however, is that
the Supreme Court, in spite of its opinion, agreed with the Court of
Appeals in observing, “‘by its all inclusive terminology [Title IX]
appears to encompass all forms of federal aid to education, direct or
indirect.’” Grove City, 465 U.S. at 564 (quoting Grove City v. Bell, 687
F.2d 684, 691 (1982)). In addition, the Court recognized the need to
“‘accord [Title IX] a sweep as broad as its language,’” North Haven Bd.
of Educ. v. Bell, 456 U.S. 512, 521 (1982) (quoting United States v.
Price, 383 U.S. 787, 801 (1966)), and it was reluctant to limit Title IX
by language not intended by the Legislature. See Grove City, 465 U.S.
at 564.
99
. See 20 U.S.C. § 1682 (1994). Once coverage is triggered, this
statute provides:
Each Federal department and agency which is empowered to extend
Federal financial assistance to any educational program or activity, by way
of grant, loan, or contract other than a contract of insurance or guaranty, is
authorized and directed to effectuate the provisions of section 1681 of this
title with respect to such program or activity by issuing rules, regulations,
or orders of general applicability which shall be consistent with
achievement of the objections of the statute authorizing the financial
assistance in connection with which the action is taken. No such rule,
regulation, or order shall become effective unless and until approved by
97
.
.
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that accepts no direct federal assistance.100 In fact, Grove City “sought
to preserve its institutional autonomy by consistently refusing state and
federal financial assistance.”101
The Department of Education
concluded, however, that Grove City was a “recipient” of “Federal
financial assistance,”102 and required that the college execute an
the President. Compliance with any requirement adopted pursuant to this
section may be effected (1) by the termination of or refusal to grant or to
continue assistance under such program or activity to any recipient as to
whom there has been an express finding on the record, after opportunity
for hearing, of a failure to comply with such requirement, but such
termination or refusal shall be limited to the participating political entity,
or part thereof, or other recipient as to whom such a finding has been
made, and shall be limited in its effect to the particular program, or part
thereof, in which such noncompliance has been so found, or (2) by any
other means authorized by law: Provided, however, That no such action
shall be taken until the department or agency concerned has advised the
appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured by
voluntary means. In the case of any action terminating, or refusing to
grant or continue, assistance because of failure to comply with a
requirement imposed pursuant to this section, the head of the Federal
department or agency shall file with the committees of the House and
Senate having legislative jurisdiction over the program or activity
involved a full written report of the circumstances and the grounds for
such action. No such action shall become effective until thirty days have
elapsed after the filing of such report.
Id.
100
. See Grove City, 465 U.S. at 559.
101
. Id. Grove City, through its desire to steer clear of federal financial
aid, has declined to participate in both direct institutional aid programs
and in federal student assistance programs. See id. The college,
however, has enrolled many students who receive Basic Educational
Opportunity Grants (BEOG’s) under the Department of Education’s
Alternate Disbursement System (ADS). See id. The Secretary of
Education provides an alternative procedure for disbursing BEOG’s to
students whose university participates in ADS, like Grove City, who
want to minimize their involvement with federal financial assistance.
See id. n.5. These institutions allow the Secretary to calculate awards
and make disbursements directly to eligible students and not to the
educational institution. See id. (explaining the process by which awards
are disbursed.
102
. 34 C.F.R. §106.2(g)(1), (h) (1998). “Federal financial assistance”
is defined as “[a] grant or loan of Federal financial assistance, including
funds made available for: . . . (ii) [s]cholarships, loans, grants, wages or
other funds extended to any entity for payment to or on behalf of
students admitted to that entity, or extended directly to such students for
payment to that entity.” 34 C.F.R. § 106.2(g)(1)(ii). A “recipient” is
“any public or private agency, institution, or organization, or other
entity, or any person, to whom Federal financial assistance is extended
directly or through another recipient and which operates an education
program or activity which receives or benefits from such assistance . . .
.” 34 C.F.R. §106.2(h); see also 34 C.F.R. §§ 106.11, 106.31(a) (1998)
(providing for application and activities that these regulations apply to).
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“assurance of compliance” as required by the language set forth in the
regulations implementing Title IX.103
Because Grove City refused to comply with Title IX’s regulations,
administrative proceedings were initiated by the Department of
Education, which terminated all assistance until the college was in
compliance with the regulations.104 The college and four of its students
then filed suit against the Secretary of Education.105 The Supreme
Court held that although some of Grove City’s students did receive
BEOG’s, institution-wide coverage under Title IX was not
triggered.106 This decision affected the general scope of Title IX
coverage, and thus, played a major role in its application from 1984
until the passing of the Civil Rights Restoration Act of 1987.
b. Civil Rights Restoration Act of 1987
As a response to Grove City, Congress denied application of a “programspecific” approach to Title IX coverage and reinstated institution-wide
application of the statute through its passing of the Civil Rights Restoration
Act of 1987.107 Congress fervently believed that “legislative action
103
34 C.F.R. § 106.4(a) (1998).
See Grove City, 465 U.S. at 561.
105
See id.
106
See id. at 573. The Court explained that “[i]n purpose and effect,
BEOG’s represent federal financial assistance to the College’s own
financial aid program, and it is that program that may be properly
regulated under Title IX [not all programs under the blanket of the
institution’s name].” Id. at 573-74. It further announced that just
because federal funds “eventually reach the College’s general operating
budget cannot subject it to institution-wide coverage.” Id. at 572.
107
. Pub. L. No. 100-259, 102 Stat. 28 (codified as amended at 20
U.S.C. § 1687-88, 42 U.S.C. § 2000(d)-4(a) (1994). This statute states
in pertinent part:
For the purposes of this title, the term “program or activity” and
“program” mean all of the operations of:
(1)(A) a department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such
assistance and each such department or agency (and each other State or
local government entity) to which the assistance is extended, in the case of
assistance to a state or local government;
(2)(A) a college, university, or other postsecondary institution, or a public
system of higher education; or
(B) a local educational agency (as defined in section 8801 of this title),
system of vocational education, or other school system . . . (4) any other
entity which is established by two or more of the entities described in
paragraph (1), (2), or (3); any part of which is extended Federal financial
assistance, except that such term does not include any operation of an
entity which is controlled by a religious organization if the application of
section 1681 of this title to such operation would not be consistent with
104
.
.
.
.
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[was] necessary to restore the prior consistent and long-standing
executive branch interpretation and broad, institution-wide application
of those laws as previously administered.”108 Furthermore, Congress
found that “certain aspects of recent decisions and opinions of the
Supreme Court have unduly narrowed or cast doubt upon the broad
application of [T]itle IX of the Education Amendments of 1972 . . .
.”109
The Restoration Act required that “if any arm of an educational
institution received federal funds, the institution as a whole must
comply with Title IX’s provisions.”110 One problem that presents itself
within the framework of the Restoration Act, however, is the same one
found throughout the history of proposed Title IX regulatory
schemes– it does not specifically mention sports or intercollegiate
athletics of any kind. It is apparent, though, through careful
examination of the record of the floor debate, that the Restoration Act
of 1987 was created, in part, to establish “a more level playing field for
female athletes.”111 It is for this reason that Title IX applies generally
to college athletics, and more importantly, why it has become one of
the most controversial issues in education and intercollegiate athletics
today.
To conclude, the sources of Title IX interpretation have been
somewhat unclear and have led to confusion in its implementation and
in its standards for compliance.112 Perhaps it is this confusion which
led the Cohen court to once again wrongly interpret Title IX.
According to Cohen, the only way for a college to be in compliance
the religious tenets of such organization.
20 U.S.C. § 1687.
108
. Id. § 2(2).
109
. Id. § 2(1).
110
. Cohen II, 991 F.2d 888, 894 (1st Cir. 1993); see also S. Rep. No.
100-64, at 4 (1988), reprinted in 1988 U.S.C.C.A.N. 3, 6 (explaining
that Congress wanted to prohibit discrimination throughout an entire
institution if the institution received any federal funds).
111
. Cohen II, 991 F.2d at 894 (citing 130 CONG. R EC . S12,642 (daily
ed. Oct. 2, 1984) (statement of Sen. Byrd “decrying past discrimination
against female athletes”); 130 CONG. R EC. S11,253 (daily ed. Sept. 17,
1984) (statement of Sen. Hatch “regarding the importance of Title IX in
ensuring development of women athletes”); 130 CONG. R EC. S2,267
(daily ed. Mar. 2, 1984) (statement of Sen. Riegle noting “extensive
evidence of sex discrimination in education and athletics”)). Evidence
of the fact that Congress asked the DED to provide regulations
specifically governing athletics gives more reason to acknowledge its
broad coverage. See Policy Interpretation, 44 Fed. Reg. at 71,413
(1979). For the specific regulations, see also supra notes 30-45 and
accompanying text.
112
. See supra notes 92-95 and accompanying text.
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with the nondiscrimination statute is to in fact discriminate against
men.113 It is through this reverse discrimination that the court goes
against Congress’ intentions and implements a de facto quota scheme.
Since
“[t]here have been remarkably few cases interpreting Title IX since that time,
[and of these few cases], many . . . contain language and analyses [as Cohen
did] antithetical to the statutory language, making their guidance highly
suspect. Thus, confusion has reigned in the Title IX arena, giving universities
reluctant to comply a great excuse for failing to do so.114
III. COHEN V. BROWN UNIVERSITY
A. Factual Background
Brown University is an institution of higher education, which competes
within the Division I level of the National Collegiate Athletic Association
(NCAA).115 As a member of this conference, Brown participates at the
highest level of NCAA competition.116 At the time of this action,
Brown offered an extensive athletic program for all of its students–
both women and men.117
Brown’s women’s athletic program,
however, only began in 1971 when Brown merged with its sister
school, Pembroke College.118 After the merger with Pembroke,
113
114
.
. See supra notes 115-59 and accompanying text.
Pederson v. Louisiana State Univ., 912 F. Supp. 892, 919 (M.D.La. 1996).
115
. See Cohen III, 879 F. Supp. 185, 188 (D.R.I. 1995).
116
. See id. Brown’s football team competes at the second highest
level of NCAA competition, Division I-AA. See id. at 189 n.4.
117
. See Cohen I, 809 F. Supp. at 981. At the initiation of the suit in
1991, Brown offered fifteen women’s sports in intercollegiate
competition and sixteen men’s teams. See id. Brown offered sports for
both sexes: Men’s and Women’s (1) basketball; (2) crew; (3) crosscountry; (4) ice hockey; (5) lacrosse; (6) soccer; (7) squash; (8)
swimming; (9) tennis; (10) fall track; and (11) spring track. See id. at
980. The remaining sports were part of either the men’s-only or
women’s-only athletic programs; these teams were: men’s baseball,
football, golf, water polo, and wrestling; and women’s field hockey,
gymnastics, softball, and volleyball. See id. This array of teams offered
is nearly double the national average, and the percentage of Brown
women competing in intercollegiate athletic competition nearly triples
the national figures. See Gary McCann, Suit Captures Attention of
College Leaders, GREENSBORO NEWS & R ECORD, Dec. 18, 1995, at C4,
available in 1995 WL 9458868.
118
. See Cohen I, 809 F. Supp. at 981. Before 1971, Pembroke
College had its own separate athletic program, “a sub-unit of Brown
University” until the two merged that year. Id. “Before the merger, the
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“Brown promptly upgraded Pembroke’s rather primitive athletic
offerings, so that by 1977, there were fourteen women’s varsity
teams.”119
Although Brown’s athletic program works within a “two-tiered”
funding system that includes “university-funded” and “donor-funded”
teams,120 both types of teams are varsity level athletic programs.121
Although these two types of teams were historically provided unequal
benefits, Brown is beginning to minimize these differences.122 Brown’s
athletic department, at the time of the Cohen battle, offered university
funding for thirteen women’s sports and twelve men’s sports.123 In
addition, three women’s and four men’s teams comprise the donorfunded squads.124
Each gender’s athletic offerings were thus
equivalent at sixteen sports a piece prior to the proposed cuts.
In the Spring of 1991, Brown, like many other schools, was
experiencing financial difficulties, and, 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
women’s athletic program at Pembroke bore no resemblance to the
program which Brown provided . . .” to men. Id. As its own entity,
Pembroke sponsored few intercollegiate athletic teams—field hockey,
basketball and tennis. See id. The women’s program also received little
financial or institutional support from Brown. See id.
119
. Cohen II, 991 F.2d 888, 892 (1993) aff’d in part, rev’d in part,
101 F.3d 155 (1996). By the 1991-92 academic year, Brown offered
fifteen women’s varsity teams and 16 men’s teams. See id. In addition,
Brown has since added two additional women’s teams. In 1982 it added
Winter Track. See Cohen I, 809 F. Supp. at 981. It also added
Women’s Skiing in 1994. See Cohen III, 879 F. Supp. at 211.
120
. See Cohen III, 879 F. Supp. at 189 (noting that “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 . . . .”).
121
. See id.
122
. Id. n.7. “Brown, since the 1993-94 season, has decided to provide
donor-funded varsities with access to the weight and training rooms and
with special admissions considerations.” Id. “It is not yet clear,
[however], to what extent all of these varsity advantages will actually be
provided to donor-funded varsities
. . . .” Id. The Policy
Interpretation recognizes club teams as intercollegiate varsity “where
they regularly participate in varsity competition.” Policy Interpretation,
44 Fed. Reg. at 71,413 n.1 (1979). Brown also provides club sports,
which receive funding from the Student Activities Organization. See
Cohen III, 879 F. Supp. at 191. Club teams not competing at the varsity
level are not included in the analysis. See Policy Interpretation, 44 Fed.
Reg. at 71,413, n.1.
123
. See Cohen III, 879 F. Supp. at 188-89.
124
. See id. at 189.
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polo.”125 The University permitted the teams to continue playing as
“intercollegiate clubs,” a status that allowed them to compete against
varsity teams from other colleges, but cut off financial subsidies and
support services usually available to varsity teams.126
Before Brown considered elimination of these four teams, Brown
athletics offered approximately 328 varsity slots on women’s varsity
sports teams for female athletes and 566 varsity slots for male
athletes.127
Women therefore comprised 36.7% of
“athletic
128
opportunities” at Brown and men had 63.3%.
Although cutting the
four varsity teams took substantially more dollars from the women’s
athletic budget than from the men’s budget, it did not alter the athletic
opportunity ratios: women continued to retain 36.6% of the
opportunities and men 63.4%.129
After Brown had announced its intentions of dropping these four
varsity teams, members of the women’s volleyball and gymnastics
teams, led by gymnast Amy Cohen, brought this civil action.130 The
plaintiffs charged that “Brown University . . . and its Athletic Director”
violated Title IX’s ban on gender-based discrimination by
“discriminating against women in the operation of its intercollegiate
athletic program . . . . ”131 According to the plaintiffs, this violation
was “exacerbated by Brown’s decision to devalue two women’s
programs without first making sufficient reductions in men’s activities
125
. Cohen II, 991 F.2d 888, 892 (1st Cir. 1993). Brown estimated
that the elimination of these four varsity squads would save the
university $77,813 per year: $37,127 used for funding women’s
volleyball; $24,901 used to fund women’s gymnastics; $9,250 for
funding men’s water polo; and $6,545 to fund men’s golf. See id.
126
. See id. Many of these subsidies include, but are not limited to,
“salaried coaches, access to prime facilities, preferred practice time,
medical trainers, clerical assistance, office support, admission
preferences and the like.” Id.
127
. See id.
128
. See id.
129
. See id. In 1991, and for a number of years prior thereto, Brown’s
student body was made up of approximately 52% men and 48% women.
See id.
130
. See Cohen II, 991 F.2d at 892-93. The members of the class
proceeded on an implied cause of action under Title IX. See id.; see also
generally Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992)
(recognizing implied private right of action under Title IX); see also
Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (explaining
the same); id. at 687 n.8 (holding that exhaustion of administrative
remedies is not a prerequisite to a Title IX action).
131
. Cohen I, 809 F. Supp. 978, 979 (D.R.I. 1992).
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or, in the alternative, adding other women’s teams to compensate for
the loss.”132
The District Court certified a class upon a motion by the plaintiffs,133
and after hearing fourteen days of testimony, the judge granted a
preliminary injunction requiring Brown to reinstate the two women’s
teams (but not the two men’s teams).134
B. Procedural History
After the decision of the district court, Brown appealed the court’s issuance
of the injunction, but the First Circuit affirmed in Cohen II.135 At this stage
of the litigation, the First Circuit acknowledged that Cohen was a
“watershed case,” and therefore realized the importance of precedent
and provided a detailed framework of Title IX analysis, thus becoming
the first appellate tribunal to recognize the “interpretive gloss” placed
on Title IX by the implementing agencies.136
In a trial on the merits in Cohen III, the district court relied heavily
on the First Circuit’s reading of the three-prong test presented in the
injunction appeal.137 Because it had failed all three prongs of the
Effective Accommodation test, the court found that Brown was in
violation of Title IX.138 The district court ordered specific relief.139
132
Cohen II, 991 F.2d at 893.
See id. The class certified was made up 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.” Id.
134
. See Cohen I, 809 F. Supp. at 980. The court required Brown to
restore the women’s teams to university-funded varsity status, and
prohibited Brown from eliminating or reducing the status or funding of
any existing women’s intercollegiate varsity team pending the outcome
of a trial on the merits. See id.
135
. See Cohen II, 991 F.2d at 891. The First Circuit panel upheld the
district court’s ruling in all respects but one. See id. at 903. The First
Circuit held the district court erred in misallocating the burden of proof
under prong three of the three part test. See id. The district court had
placed the burden on the defendant to prove prong three compliance. See
id. The standard, instead, requires plaintiffs to prove they have interests
not being met. See id. at 903-04.
136
. Bernardo, supra note 13, at 323.
137
. See Cohen III, 879 F. Supp. 185, 192-93 (D.R.I. 1995).
138
. See id. at 211-14 (discussing how and why Brown failed each of
the prongs of the effective accommodation test).
139
. See id. at 214. The district court also ordered that Brown had to
submit a plan for compliance with Title IX within 120 days of the
judgment. See id.
133
.
.
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Brown then appealed to the First Circuit, and for the second time, the
First Circuit affirmed the lower court’s decision.140
C. Judicial Holdings and Reasoning
Although Brown effectively failed all three prongs of the “Effective
Accommodation” test, it is prong three that gave the courts the biggest
problem.141 The courts also quickly disposed of Brown’s argument that
this provision of Title IX violated equal protection guarantees.142 The
Courts pointed to a lack of evidence that men are more likely than
women to play sports, and also noted that even assuming the scales
were tilted in favor of women, it found no Constitutional infirmity
because Congress has broad powers under the Fifth Amendment to
remedy past discrimination.143
D. Chief Justice Torruella’s Dissent
Chief Justice Torruella of the First Circuit Court of Appeals dissented from
the majority’s holding in Cohen IV.144 The basis of Chief Justice
Torruella’s dissent was that the Cohen court had applied a “benignclassification analysis to what [it had] viewed to be benign gender
discrimination by the federal government.”145 Basically, the Chief
Justice believed that the government, through Title IX, endorsed an
unconstitutional quota system. Although Cohen II, in its brief
discussion of the equal protection issue, did not specify the precise
standard it used, the court stated that “even if we were to assume . . .
140
. See Cohen IV, 101 F.3d 155, 162 (1st Cir. 1996) (affirming the
district court’s holding requiring Brown to elevate and maintain at
university-funded varsity status four women’s teams: gymnastics,
fencing, skiing and water polo). This time, however, the First Circuit
found error in the district court’s “specific relief” award. See id.
141
. See Cohen II, 991 F.2d at 899-900.
142
. See id. at 900-01.
143
. See id. at 901.
144
. See Cohen IV, 101 F.3d 155, 188 (1st Cir. 1996) (Torruella, C.J.,
dissenting).
145
. Id. at 189. In his dissent, the Chief Justice explained that “[a]t
the time of [Cohen II], the standard intermediate scrutiny test for
discriminatory classifications based on sex required that ‘a statutory
classification must be substantially related to an important government
objective.’” Id. (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)); see
also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9
(1982); Craig v. Boren, 429 U.S. 190, 197 (1976).
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that the regulation creates a gender classification slanted somewhat in
favor of women, we would find no constitutional infirmity.”146
Because the Chief Justice believed that the courts below him had
erred in that none realized that its interpretation of Title IX created a
quota system, he urged, through his dissent, for an alternate level of
judicial scrutiny to be applied in this situation.147 He explained that to
correctly determine whether a quota system existed, the court should
have “focus[ed] on the categories and justifications proffered [for these
schemes] rather than the labels attached . . . .”148 For this reason he
suggested that the court follow the precedent set forth in Adarand
Constructors, Inc. v. Pena,149 instead of Metro Broadcasting, Inc. v.
F.C.C., 150 because it disfavors most any kind of regulation slanted in
favor of one sex or another.151 Above all, Chief Justice Torruella
embraces the belief that:
146
. Cohen II, 991 F.2d at 901. Chief Justice Torruella stated that the
“focus is on the government’s ability to favor women in this context,
rather than on an ‘important government objective,’ suggesting that the
court considered the issue to be one of benign discrimination.” Cohen
IV, 101 F.3d at 189 (Torruella, C.J., dissenting). In addition, he stated
that no governmental interest was even identified in Cohen II. See id.
147
. See Cohen IV, 101 F.3d at 190 (Torruella, C.J., dissenting).
148
. Id.
149
. 515 U.S. 200 (1995). In Adarand, the Supreme Court held that
“all racial classifications . . . must be analyzed by a reviewing court
under strict scrutiny.” Id. at 227. The court in Adarand singled out the
previous law in this area (Metro Broadcasting, Inc. v. F.C.C., 497 U.S.
547 (1990)) as a “significant departure” from much of the Equal
Protection jurisprudence that had come before it, in part because it
suggested that benign government race-conscious classifications “should
be treated less skeptically than others . . . . ” Id. Moreover, Chief
Justice Torruella explained that “[i]t is not necessary to equate race and
gender to see that the logic of Adarand . . . applies in the context of
gender.” Cohen IV, 101 F.3d at 190 (Torruella, C.J., dissenting).
Furthermore, he explained that Adarand compels us to view so-called
gender-conscious governmental actions under the same lens as any other
gender-conscious governmental actions. See id. (citing Adarand, 515
U.S. at 226).
150
. 497 U.S. 547 (1990) (explaining that suspect classification was
allowed because it was benign). It was in this case that the Supreme
Court announced that “benign race-conscious measures mandated by
Congress . . . are constitutionally permissible to the extent that they
serve important governmental objectives within the power of Congress
and are substantially related to achievement of those objectives.” Id. at
564-65.
151
. See Cohen IV, 101 F.3d at 189-90 (Torruella, C.J., dissenting).
Torruella disagrees with the court’s assumption that regulations slanted
in favor of women are permissible because Congress may compensate
women for past discrimination. See id. at 189 (citing Cohen II, 991 F.2d
888, 901 (1st Cir. 1993)).
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Rather than conduct an inquiry into whether Title IX and its resulting
interpretations are benign or remedial, and conscious of the fact that labels can
be used to hide illegitimate notions of inferiority or simple politics just as easily
in the context of gender as in the context of race, we should now follow
Adarand’s lead and subject all gender-conscious government action to the same
inquiry.152
Torruella believes that there is another precedent that makes it
necessary to review the Cohen court’s decision153— United States v.
Virginia.154 Torruella explained that this case “‘drastically revise[d]
our established standards for reviewing sex-based classifications.’”155
He also explained that what is important for the Cohen court is that the
Supreme Court appeared to have elevated the test applicable to sex
discrimination cases to require an “exceedingly persuasive
justification.”156
Torruella dissented from the majority’s opinion because Adarand
and Virginia are “irreconcilable with the analysis” by the Cohen court,
and accordingly, he believed the court must follow the guidance of the
Supreme Court in its analysis.157 “Under the new standards established
in those cases, [the Chief Justice acknowledged that the Cohen court’s
interpretation of Title IX] is flawed both because it applies a lenient
version of intermediate scrutiny that is impermissible following
Adarand and because it did not apply the ‘exceedingly persuasive
152
. Id. (footnote omitted). But see Califano v. Webster, 430 U.S. 313 (1977)
(holding that where there was an “exceedingly persuasive justification” for genderconscious state action, Congress can allow a lower retirement age for women than
for men, resulting in female wage-earner’s being awarded higher monthly social
security payments).
153
. See Cohen IV, 101 F.3d at 190 (Torruella, C.J., dissenting).
154
. 518 U.S. 515 (1996). This Court heard an Equal Protection
challenge to Virginia’s practice of maintaining the Virginia Military
Institute as an all-male institution. See id. at 530. “Rather than simply
apply[ing] the traditional test requiring that gender classifications be
‘substantially related to . . . important government objective[s],’” Clark
v. Jeter, 486 U.S. 456, 461 (1988), “the Supreme Court applied a more
searching ‘skeptical scrutiny of official action denying rights or
opportunities based on sex . . .’ which requires that ‘[p]arties who seek
to defend gender-based government action must demonstrate an
exceedingly persuasive justification for that action.’” Cohen IV, 101
F.3d at 190 (Torruella, C.J., dissenting) (citing United States v.
Virginia, 518 U.S. at 530).
155
. Cohen IV, 101 F.3d at 191 (Torruella, C.J., dissenting) (quoting
United States v. Virginia, 518 U.S. at 566 (Scalia, J., dissenting))
(alteration in original).
156
. Id.
157
. Id.
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justification’ test of Virginia.”158 Above all, he feels that the court
“must, as Brown [University] urges, reexamine the Equal Protection
challenge to the three-prong test as interpreted by the district court.”159
IV ANALYSIS
A. What is the Correct Interpretation of Title IX?
1. Congress’ Explicit Intent
Because Title IX itself did not provide colleges and universities strict
guidelines for compliance, and because it had very little legislative history,160
colleges and universities have had a difficult time determining what
they must do to comply with the statute. Since so many questions
have remained unanswered, it is important to first answer what the
proper interpretation of Title IX should be. We must look in many
different directions to even begin to answer this question.
The backbone of the Title IX legislation is quite obvious to any lay
person who looks at its language: “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education
program or activity . . . .” 161 This statute ultimately protects an
individual from discrimination based on gender.
158
Id.
Id.
160
There were no committee reports issued on Title IX. See Cohen II,
991 F.2d 888, 893 (1st Cir. 1993). In addition, there were only two
mentions of athletics during the Congressional debates. See id. Even
when athletics was mentioned, however, the discussion had little
bearing on guidelines for compliance with Title IX. See 118 CONG. R EC.
5,807 (1972) (statement of Senator Bayh discussing privacy in athletic
facilities); 117 CONG. R EC. 30,407 (1971) (statement of Senator Bayh
noting that Title IX does not require gender-blended football teams).
The only significant legislative history of Title IX came in response to
hearings on proposed regulations. See Sex Discrimination Regulations,
1975: Hearings Before the Subcomm. on Postsecondary Education of
the House Comm. on Education and Labor, 94th Cong., 1st Sess. 21
(1975). Senator Tower offered an amendment that would have exempted
college athletics from Title IX’s blanket coverage. See Policy
Interpretation, 44 Fed. Reg. 71,413, 71,413 (1979). This proposed
amendment was dropped by the committee and replaced by the Javits
Amendment. See Sex Discrimination Regulations, 1975: Hearings
Before the Subcomm. on Postsecondary Education of the House
Comm. on Education and Labor, 94th Cong., 1st Sess. 21 (1975).
161
. 20 U.S.C. § 1681(a) (1994).
159
.
.
.
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Because Congress has left little legislative history to investigate in
order to easily determine the correct interpretation of Title IX, it seems
almost impossible to discover the prevailing intent of Congress. We
can, however, like many judges, lawyers, and scholars before us have,
turn to the plain meaning of the words chosen by Congress.162 As
Justice Scalia has wrote:
The meaning of terms on the statute books ought to be determined, not on the
basis of which meaning can be shown to have been understood by a larger
handful of the Members of Congress; but rather on the basis of which meaning
is . . . most in accord with context and ordinary usage, and thus most likely to
have been understood by the whole Congress which voted on the words of the
statute . . . . 163
Looking at the legislation through this lens determines that Congress
only intended for institutions to provide “reasonably comparable
opportunities” for both sexes–nothing more or nothing less.164
Moreover, not only did Congress mandate that institutions not
discriminate against either gender, it also explained that Title IX did
not entitle any institution to grant preferential treatment to either sex
based on an imbalance between “the total number or percentage of
persons of that sex . . . receiving benefits . . . in comparison with the
total number or percentage of persons of that sex in any. . . area
..
165
. .”
Based on the plain meaning of this language, no institution has
the right to create or provide disparate opportunities for one sex at the
expense of the other. Above all, there is nothing within the plain
162
163
. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989)
(Scalia, J., concurring).
. Id.
164
. Michael Straubel, Gender Equity, College Sports, Title IX and
Group Rights: A Coach’s View, 62 BROOK. L. R EV. 1039, 1057 (1996).
In addition, a phenomenon has been created by universities speculating
as to what “reasonable athletic opportunities” means. Most schools, in
order to create athletic opportunities for women, “have had to take
athletic opportunities away from men.” Jim Donaldson, Another View:
Proportionality Makes Title IX Compliance Irrational, FT. W ORTH
STAR-TELEGRAM 2, Oct. 9, 1998, available in 1998 WL 14931130.
According to Donaldon, “eliminating sports was never the intent of Title
IX. But it has been the result.” Id. Furthermore, he stated that the true
intentions of the framers of Title IX was “to get more women playing
intercollegiate sports. The idea never was to reduce the number of men
who are participating. But that’s what has happened . . . . This is
carrying the admirable concept of gender equity to a ridiculous
extreme.” Id.
165
. 20 U.S.C. § 1681(b) (1994).
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meaning of the statute that allows a university to utilize affirmative
action or quotas in order to create equal treatment of the sexes.166
In addition to looking for Congress’ intent through the plain
meaning of the language of Title IX, it may prove advantageous to
acknowledge its limited legislative history as well. Looking to the
Javits Amendment167 for guidance, it explains that any regulations
applicable to Title IX should be prepared “with respect to
intercollegiate athletic activities
[with] reasonable provisions
considering the nature of particular sports.”168 Generally speaking,
Title IX covers all intercollegiate athletic programs.
Furthermore, it seems evident that Title IX was also intended to
mirror Title VII of the Civil Rights Act of 1964.169 Based on a reading
of this statute in conjunction with Title IX, it seems as though they
were based on similar reasoning and created for similar purposes.
Congress intended through these statutes to prohibit the use of federal
funds to support discriminatory practices; they were not intended to
promote any quota-based “solution” to past underrepresentation by
one sex.170 In fact, it has been stated that although Title VII is “more
narrowly focused on employment discrimination than is the general ban
on gender discrimination [ascribed to Title IX,] and the headings
reflect that difference[,] . . . the headings do not negate Senator Bayh’s
intent that employees as well as students be protected by . . . [this]
portion of his amendment.”171
166
. Rhode Island Senator Claiborne Pell specifically acknowledged
this belief when he opined that this type of amendment should not be
used to establish quotas for sex. See 118 CONG. R EC. 18,437 (1972)
(statement of Senator Pell denouncing the use of Title IX as a quotabased scheme).
167
. See Javits Amendment, 20 U.S.C. § 1681 (1988); see also supra
note 39 and accompanying text.
168
. See Javits Amendment, 20 U.S.C. § 1681 (1988).
169
. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified at 42 U.S.C. §
2000(e)- 2000(e)-17 (1994). This statute was designed to prevent
discrimination in employment practices. See id. § 2000(e)-2(j). Title
VII provides a directive against affirmative action:
Nothing contained in this subchapter shall be interpreted to require any
employer . . . to grant preferential treatment to any individual . . . on
account of an imbalance which may exist with respect to the total number
or percentage of persons of any race, color, religion, sex, or national origin
employed by an employer . . . in comparison with the total number or
percentage of persons of such race, color, religion, sex, or national origin
in any community . . . or other area.
Id.
170
. See 20 U.S.C. §§ 1681-88; see also supra notes 30-36 and
accompanying text.
171
. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 525 (1982)
(footnote omitted).
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2. Deference to Agency Regulations and Policy Interpretation
Throughout the Cohen battle, the courts agreed that “the regulations
promulgated pursuant to Title IX deserve controlling weight.”172 This
degree of deference was obviously appropriate because Congress had
specifically directed the OCR to provide regulations for the
enforcement and application of Title IX.173 Moreover, it is well
established that where Congress has explicitly authorized an agency to
promulgate regulations, “those agency regulations are binding on the
courts ‘unless they are arbitrary, capricious, or manifestly contrary to
the statute.’”174
In addition to the OCR’s regulations, the appellate court also
concluded that the Policy Interpretation, because it interprets the
agency’s own rules, warrants “substantial deference.”175 The court
concluded that “for all practical purposes, an agency’s interpretation of
its own regulations is accorded the force of law unless such
interpretation is clearly erroneous or inconsistent with the
regulation.”176 Furthermore, Congress reaffirmed its approval of the
Policy Interpretation as established in the record on the floor debate of
the Restoration Act of 1987;177 Congress intended that Title IX’s
prohibition against discrimination be broadly construed.178
With these additional mechanisms to resort to in determining the
intent of Congress for compliance with Title IX’s mandates, it is
problematic that Title IX jurisprudence has interpreted the statute as it
has. Since it is so clear that the purpose of Title IX is to prohibit
discrimination based on sex in federally funded programs, why, then,
172
Cohen III, 879 F. Supp. 185, 197 (D.R.I. 1995).
See supra notes 30-45 and accompanying text.
174
Cohen III, 879 F. Supp. at 197 (quoting Chevron, U.S.A. v.
Natural Resources Defense Council, 467 U.S. 837, 844 (1984)); see
also National Latino Media Coalition v. F.C.C., 816 F.2d 785, 788
(D.C. Cir. 1987) (holding that an agency who has authority from
Congress to make rules and then the agency adopts these rules, this
agency stands in Congress’ shoes and makes law).
175
. Cohen II, 991 F.2d 888, 896-97 (1st Cir. 1993); see also Lyng v.
Payne, 476 U.S. 926, 939 (1986) (noting that an agency’s interpretation
of its own regulations, while not given force of law, is entitled to
substantial deference); Udall v. Tallman, 380 U.S. 1, 16 (1965) (noting
that when a regulation’s construction, rather than the statute itself, is an
issue, deference is clearly in order).
176
. Cohen III, 879 F. Supp. at 199 (citation omitted).
177
. See id. at 198; 20 U.S.C. § 1687 (1994).
178
. See Cohen II, 991 F.2d at 894.
173
.
.
.
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have so many colleges and universities supposedly “complied” with
Title IX by essentially discriminating against males in order to provide
more athletic opportunities for females?179 While Congress has
unquestionably established a statute to protect all individuals from
discrimination based on sex, “[t]he courtroom battles over Title IX, the
legal force behind the push for gender equity, have produced an
interpretation of Title IX and its implementing regulations that works
much like a blunt instrument, rather than a sharp knife, to go after
cancerous discrimination in college athletic programs.”180
Unknowingly, Title IX jurisprudence has ultimately created a test
which presumes discrimination if any unequal treatment exists.
Despite other factors that may explain why uneven percentages of
males and females may participate in intercollegiate athletics, it seems
that a university never presumably reaches compliance with Title IX
unless it forces proportionality. At many colleges and universities, this
has meant that “women’s teams are not being helped; rather, men and
men’s teams are being hurt.”181
B. The Creation of a Quota-Based Scheme
We live in a world where everyone, including universities, major
corporations, and governments alike, is trying to reverse the effects of past
discrimination.182 Past discrimination, however, cannot be reversed
without treating people differently, based upon explicit considerations
of the very criterion on which past discrimination was based (i.e.,
gender).183 Many have implemented quotas to repair the harm created
by history because they depend on the fact that “disproportionate
beneficial treatment toward [the historically discriminated against] is
allowed within the context of the United States Constitution . . . . ”184
179
See supra notes 9-16 and accompanying text.
Michael Straubel, Gender Equity, College Sports, Title IX and
Group Rights: A Coach’s View, 62 BROOK. L. R EV. 1039, 1041 (1996).
181
. Id. The intention of Title IX was never to have women playing
athletics at the expense of men— it was to have more women playing
and to add sports for women, not to drop sports for men. See Donaldson,
supra note 164, at 2.
182
. See, e.g., Clark v. Jeter, 486 U.S. 456 (1988); Mississippi Univ.
for Women v. Hogan, 458 U.S. 718 (1982); Millis v. Habluetzel, 456
U.S. 91 (1982); Lewis v. Cowen, 435 U.S. 948 (1978); Califano v.
Webster, 430 U.S. 313 (1977); Craig v. Boren, 429 U.S. 190 (1976); see
also Linda Jean Carpenter & R. Vivian Acosta, Back to the Future:
Reform With a Woman’s Voice, ACADEME, Jan.-Feb. 1991, at 23-27.
183
. See Bernardo, supra note 13, at 361-62.
184
. Mary Beth Petriella, Recent Case, 4 SETON HALL J. SPORT L. 595,
606 (1994).
180
.
.
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However, “efforts to remedy historical sex discrimination shall not
include preferential or disparate treatment of one sex over another.”185
The precedentially-established standard used to determine whether a
statute discriminates against one gender is that any gender-based
classification must be substantially related to achievement of important
governmental objectives.186 In other words, the statute will be struck
down by the court if the sex-based criterion is not substantially related
to an important government objective.187
The Cohen court based its interpretation of Title IX on this
reasoning.188 The court explained that “even if we were to assume . . .
that the regulation [Title IX] creates a gender classification slanted
somewhat in favor of women, we would find no constitutional
infirmity.”189 What is ironic about the court’s analysis in this section,
however, is that it never focused on whether there is an important
governmental objective that is substantially related to meeting
women’s interests at the highest level of accommodation while
ignoring men. In addition, one can be sure that the court would
quickly strike down the same statute as unconstitutional if it were to
focus on men’s interests as it does women’s. There is no real
governmental objective to create interests in intercollegiate athletics.
If there were, it stands to reason that the government would
presumably want to create these interests for everyone, not just
women.
Since the Cohen court could barely meet the intermediate scrutiny
level of analysis, they surely would never meet the new, even higher
standard for scrutinizing discriminatory statutes—“strict scrutiny.”190
Although this standard was originally established for use with racebased classifications, one must focus on the categories made and the
185
. Pederson v. Louisiana State Univ., 912 F. Supp. 892, 908 (M.D.
La. 1996) (emphasis added).
186
. See Craig v. Boren, 429 U.S. 190, 197 (1976). The standard
established was later known as “intermediate scrutiny.” Clark v. Jeter,
486 U.S. 456, 461 (1988).
187
. See id.
188
. See Cohen II, 991 F.2d at 901.
189
. Id.
190
. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
Under strict scrutiny, “such classifications [as race-based
classifications] are constitutional only if they are narrowly tailored
measures that further compelling governmental interests.” Id.
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justifications for these categories (whether gender-based or racebased), and not the labels attached.191
It is very obvious that the “three prong test, as the district court
interprets it, is a quota.”192 The court’s interpretation of “Effective
Accommodation,” allocating Brown’s athletic resources to meet the
“as-yet-unmet” interests of women, while neglecting any unmet
interest of men, ultimately creates a system that treats the two sex’s
interests differently based on the characterization of that sex.193 It is
this interpretation of Title IX that creates a quota-based scheme.
Ironically, “[a]lthough enacted as an anti-discrimination statute, Title
IX quietly has become an affirmative-action quota system, one that has
decreased sports opportunities for men while demanding endlessly
expanding opportunities for women.”194
C. The Cohen Courts’ Inexplicable Misinterpretation of Title IX Through
its Application of the Three-Prong Effective Accommodation Test Was
Only the First Step to Creating a De facto Quota Scheme
Because equal opportunity lies at the core of Title IX’s purpose, the Cohen
court determined, given the different interpretive instruments offered by the
OCR, that the third compliance section within the Policy Interpretation
delineated its “heartland.”195 In addition, the court insisted that in regard
to effectively accommodating students’ interests and abilities, “an
institution can violate Title IX even if it meets the [first two sections of
the Policy Interpretation].”196 In fact, it was this third compliance area
that the majority of the Cohen battle was fought upon.197
As previously discussed earlier in this Comment, this third
compliance section determines whether a university has successfully
and fully accommodated its students’ interests and abilities.198 By
using the three-prong test delineated under this section, the Cohen
court effectively found Brown in violation of Title IX because it had
not met its proportionality requirement– Brown had not fully and
effectively accommodated the interests and abilities of its female
191
. See Cohen IV, 101 F.3d 155, 190 (1st Cir. 1996) (Torruella, C.J.,
dissenting).
192
. Id. at 195.
193
. Id.
194
. Jessica Gavora, College Women Get More Than Their Sporting
Chance, INSIGHT M AG., Jan. 22, 1996, at 25, available in 1996 WL
8310715.
195
. Cohen II, 991 F.2d at 897.
196
. Id.
197
. See id.
198
. See supra notes 66-80 and accompanying text.
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students because it had not offered enough athletic opportunities to
these students.199
1. Problems with the Cohen Courts’ Analysis of Prong I
In its analysis of the three-prong effective accommodation test, the Cohen
court has erred in three distinct areas: (1) it misdefined “participation
opportunities;”200 (2) it failed to recognize, and therefore account for,
the fact that interests and abilities generally vary between the sexes;201
and (3) it made “direct proportionality” the basis for the entire threeprong analysis–effectively establishing that the other two prongs do
not exist apart from this first prong.202 Within these three distinct
areas, the court’s analysis completely destroys the purpose of Title IX.
Furthermore, it is within this first prong that a de facto quota scheme
begins.
a. Misdefining “Participation Opportunities”
In its defense, Brown argued that “participation opportunities” should be
defined by the maximum amount of members that a team can
accommodate.203 By proposing this definition, Brown simply meant that
certain sports often carry the average number of team members that
they can allow on their rosters, different sports obviously carrying
differing numbers of slots due to the nature of the game. The court,
however, thought that this standard for measurement would never
work because individual slots available on Brown’s various athletic
squads were predetermined in a discriminatory way and were
problematic.204 Instead, the court decided to measure available
“participation opportunities” based on the number of members on each
teams’ roster at the end of the season.205
199
. See Cohen I, 809 F. Supp. 978, 991, 1001. On its face, the threeprong test seems to offer three areas of successful compliance:
substantial proportionality, continuing expansion, and full and effective
accommodation. See Cohen II, 991 F.2d at 897; see also supra notes
74-80 and accompanying text. Unfortunately, however, the Cohen court
has determined that “substantial proportionality is the sole litmus test
for satisfying Title IX.” Bernardo, supra note 13, at 341.
200
. See infra notes 203-14 and accompanying text.
201
. See infra notes 215-21 and accompanying text.
202
. See infra notes 222-29 and accompanying text.
203
. See Cohen III, 879 F.Supp. at 185, 203-04 (D.R.I. 1995).
204
. See id.
205
. See id.
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So for example, if Brown sponsored both a men’s soccer team and a
women’s soccer team, both of which would probably carry twenty
available slots (if measured in the manner suggested by Brown), and if
at the end of the soccer season nineteen men had the requisite interests
and abilities for the team, decided to try out for the team, and had
remained on the team for the entire season, then the court would have
measured the participation opportunities offered as nineteen. If on the
other hand, only sixteen women had the same interests and abilities,
decided to try out for the team, and remained on the team for the entire
season, the court would count only sixteen participation opportunities
offered to the women. The problem with this measure is that it fails to
take into account that both teams probably held open tryouts, and due
to interests and abilities of certain students, only the mentioned
numbers came out for the team. In addition, it also fails to recognize
that some of the members could have quit the team for various reasons
during the season or some may have been injured, leaving them off the
official rosters at the end of the season.
How, then, should participation opportunities be counted to measure
compliance with Title IX?206 Based on a disparity between female
participation in intercollegiate athletics and female enrollment at
Brown, the court found that the university had violated Title IX.207
Taking a look at the numbers, Brown seems to generally supply
equivalent opportunities for both its male and female students. In
1990-91, for example, Brown supported sixteen men’s and fifteen
women’s varsity teams on which 566 men and 328 women
participated.208 Disregarding the individual numbers (which could
possibly be explained if the court allowed measurement of participation
opportunities as Brown had suggested), it would appear that Brown
offers only one fewer varsity level team for women than it does for
men. As of the 1993-94 school year, Brown offered twelve universityfunded varsity men’s teams carrying 479 members and thirteen
university-funded varsity women’s teams.209 Again, similar numbers of
teams were offered to both sexes, but this time the women had one
more team than the men. These numbers were still not satisfactory for
206
. Under this section, a university complies with Prong I (and thus
Title IX) if “intercollegiate level participation opportunities for male and
female students are provided in numbers substantially proportionate to
their respective enrollments . . . .” Policy Interpretation, 44 Fed. Reg.
at 71,418 (emphasis added).
207
. See Cohen III, 879 F. Supp. at 214.
208
. See Cohen IV, 101 F.3d 155, 192 (1st Cir. 1996) (Torruella, C.J.,
dissenting).
209
. See id.
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the court, however. The court stated that “[a]lthough 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.”210
It is reasonable to believe that a university that offers the same
number of varsity teams to men and women would not violate Title IX
because both sexes would have the same number of teams from which
to choose to participate in. This conclusion, however, did not appear
so reasonable to the Cohen courts. This problem, as Chief Justice
Torruella explained in his dissent, stems from the fact that the Cohen
court included contact sports in its calculation of athletic
opportunities.211 Pursuant to the language of the applicable regulation,
however, an academic institution may operate separate teams for
members of each sex “where selection for such teams is based upon
competitive skill or the activity involved is a contact sport.”212
Because the regulations allow colleges and universities to provide for
such teams, it seems evident that they did not intend to include these
numbers within the calculation of participation opportunities. Simply
stated, “it does not make sense to include in the calculus athletes
participating in contact sports that include only men’s teams.”213
Simply by excluding contact sports, which are permitted to field singlesex teams pursuant to Title IX, from the participation rate and
participation opportunities calculation, the proportion of female
participation would increase and Prong I would be more easily satisfied
(and thus comply with Title IX).214
b. Failing to Recognize That Interests and Abilities Vary215
210
Cohen III, 879 F. Supp. at 189.
See Cohen IV, 101 F.3d at 192 (Torruella, C.J., dissenting).
212
34 C.F.R. § 106.41(b) (1998).
213
Cohen IV, 101 F.3d at 192 (Torruella, C.J., dissenting). For
example, if a university chooses to sponsor a football team for men only
or a field hockey team for women only, it is permitted to provide only
single-sex teams respectively. See id.; see also 34 C.F.R. § 106.41(b)
(1998). Teams like football and field hockey carry such a large number
of slots, that added to the number of participation opportunities as the
court suggests, the numbers would be dramatically skewed in each
situation. Because all sports are not the same, do not require the same
skill, and do not carry proportionate interests, a university has the right
to determine which athletic teams are most beneficial to its student
body. See Cohen IV, 101 F.3d at 192-93 (Torruella, C.J., dissenting).
214
. See Cohen IV, 101 F.3d at 193 (Torruella, C.J., dissenting).
215
. For further and more in depth analysis of this specific area, see infra
notes 255-74 and accompanying text.
211
.
.
.
.
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The fact that the Cohen court has held that one “may stay on the sunny
side of Title IX simply by maintaining gender parity between its student body
and its athletic lineup,”216 is very problematic. To accept this argument, one
must assume that interests and abilities to participate in intercollegiate
athletics are equal between men and women everywhere. In support of this
argument, it has been held that the Cohen court’s analysis of Prong I– that as
long as men and women are represented in athletics proportionately to the
make-up of the student body, the university will be in compliance with Title
IX– presumes too much about women’s actual wants and needs with regard
to intercollegiate athletics.217
Not all women prefer to participate in athletics, just as all men do not like
to participate in athletics. Without proper measure of each individual person
within each sex, an exact and accurate measurement of interests and abilities
is impossible. Moreover, when the court is unwilling to acknowledge that
differences exist generally between men and women, younger and older, and
even different enrollment years within a university, this prong can never be
met. As the Pederson court appropriately pointed out, persons should be
“loathe to join others in creating [a] ‘safe harbor’ or dispositive assumption
for which” to base measurement of interests and abilities.218 Because interests
and abilities will vary from place to place and from time to time, “[t]o
assume, and thereby mandate, an unsupported and static determination of
interest and ability as the cornerstone of the analysis[,] can lead to unjust
results.”219 The most unjust result possible, which appears to have been
created by the Cohen court, is to use Title IX as a tool, not to promote
current interests (which could properly be measured and which is the purpose
of Title IX), but to promote the development of new interests to correct for
past discrimination.220 As a result, this interpretation of Prong I turns Title
IX into an unlawful quota.221
c. Making “Direct Proportionality” the Entire Basis for the ThreeProng Analysis
216
Cohen II, 991 F.2d 888, 898 (1993).
See Pederson v. Louisiana State Univ., 912 F. Supp. 892, 913
(M.D. La. 1996).
218
. Id.
219
. Id. at 914.
220
. See Cohen III, 879 F. Supp. 185, 209 (D.R.I. 1995).
221
. Quotas are generally unlawful; specifically, those based on gender
classifications are unlawful unless they meet the very stringent
“exceedingly persuasive justification” standard. See Cohen IV, 101 F.3d
155, 190 (1996) (Torruella, C.J., dissenting). In addition, in his dissent,
Chief Justice Torruella also explained that even if gender-conscious
classifications were equally enforced with respect to both genders, the
interpretation of Title IX pursuant to Cohen represents unlawful genderbased government action. See id. at 192.
217
.
.
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Another problem inherent in the Cohen court’s analysis of this first prong
of the Effective Accommodation test is its emphasis on numerical
proportionality between each sex participating in athletics at a particular
university and its relative population within the student body.222 Although the
OCR has promulgated regulations, the Policy Interpretation and the
Investigator’s Manual, “it has refused to provide colleges and universities
with clear rules to comply with Title IX short of achieving
proportionality.”223 The “proportionality” language relied upon in Cohen can
be found nowhere within Title IX or its regulations; rather, courts have
inferred particular language from the Policy Interpretation and have ignored
other language within both the statute and Policy Interpretation that argue
against such a presumption.224 Title IX does not mandate that equal numbers
of each sex participate in intercollegiate athletics; rather, it prohibits
exclusion based on sex and requires equal opportunity to participate for both
sexes, if individuals within each sex prefer to take advantage of them.225
According to the Policy Interpretation, to provide equal
opportunities for males and females, one must have knowledge of the
desire of individuals to participate in athletics, must recognize the
ability to participate within each of these individuals, and must evaluate
the development of the competitive levels involved.226 As the
Pederson court acknowledged, “[c]easing the inquiry at the point of
numerical proportionality does not comport with the mandate[s] of
[Title IX].”227 In addition, the clear language of the statute prohibits
this interpretation:
[Title IX shall not] be interpreted to require any educational institution to grant
preferential or disparate treatment to the members of one sex on account of an
imbalance which may exist with respect to the total number or percentage of
persons of that sex participating in or receiving the benefits of any federally
supported program or activity, in comparison with the total number or
percentage of persons of that sex in any . . . area.228
Moreover, “it is the interests and abilities of students, not the relative
proportion of the sexes, that determines what ‘participation
opportunities’ must be offered to each sex.”229
2. Problems with the Cohen Court’s Analysis of Prong II
222
See Pederson, 912 F. Supp. at 914.
Gavora, supra note 13, at 25 (emphasis added).
224
See Pederson, 912 F. Supp. at 914.
225
See generally Policy Interpretation, 44 Fed. Reg. 17,413 (1979).
226
See Pederson, 912 F. Supp. at 914.
227
Id.
. 20 U.S.C. § 1681(b) (1994).
229
. Cohen I, 809 F. Supp. 978, 987 (D.R.I. 1992).
223
228
.
.
.
.
.
.
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Although Brown did not dispute the courts’ evaluation of Prong II of the
Effective Accommodation test, in that the majority of its argument is based on
the court’s problematic analysis of Prongs I and III, interpretation of this
prong, as evidenced from Title IX jurisprudence, shows that it has become so
dependant on Prong I that it actually has no qualifying test for compliance of
its own.230 It seems, through thorough investigation of the Cohen
court’s use of the test, that the entire three-prong analysis has
essentially become entirely based upon the relative participation rates
of each gender–making compliance under this prong directly
dependant upon satisfying the requisites of Prong I.231
The Cohen court stated that to satisfy Prong II, “a school must not
only demonstrate that the proportion of women in their program is
growing over time, it must also show that the absolute number of
women participating is increasing.”232 Because the court demanded
that the absolute number of opportunities offered to the
underrepresented gender be increased, a school will ultimately fail
under this prong if it does not have enough interested female students
to achieve a continual increase year after year.233 Moreover, if a school
does not have enough financial resources, as Brown did not, according
to the reasoning in Cohen, it appears that a school must still provide
ever-increasing opportunities for the underrepresented sex.234
What would happen, then, if in 1999, Brown sponsored fifteen
varsity women’s teams, but then due to an uninterested majority of the
women at Brown and due to lack of financial resources in 2000,
Brown dropped one of these teams? In addition, what would happen if
by dropping this one team, field hockey, for example (which ironically
carries the highest number of “slots” for women’s participation
opportunities), the ratio of women participating in intercollegiate
athletics at Brown in comparison with the proportion of women in its
student body, went down five percent—a level now disproportionate
to its population in the student body? Under the Cohen interpretation
of Prong II, the university would not have achieved compliance with
Title IX because it demonstrated that the women’s program was not
growing over time, and the absolute number of women participating
actually decreased. Assuming that Prong II compliance also depended
upon Prong I, it would also fail because the ratio of women
participating in athletics has now gone below its percentage of the
230
See Cohen IV, F.3d at 193 (Toruella, C.J., dissenting).
See id. at 193.
232
Cohen IV, 101 F.3d 155, 193 (1st Cir. 1996) (Torruella, C.J.,
dissenting) (footnote omitted).
233
. See id. at 193.
234
. See id.at 162.
231
.
.
.
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student body. Nothing short of an ever-increasing creation of athletic
opportunities for women would seem to satisfy the Cohen court under
this prong. As the court said:
[Brown] repeatedly point[s] to the fact that [its] program offerings for women
exceed the national average of women’s sports per institution. However,
Brown also exceeds the national average of men’s sports per institution. The
fact that Brown’s athletic offerings are “extensive” cannot and does not excuse
its failure to comply with Title IX. That other universities may be even more
clearly in violation of Title IX’s nondiscrimination mandate does not exonerate
an institution that still provides unequal opportunities to its own . . . f e m a l e
students.235
3. Problems with the Cohen Court’s Analysis of Prong III
a. The Cohen Court Read Effective Accommodation of Interests and
Abilities too Narrowly
According to the Cohen court, Brown violated Prong III of the Effective
Accommodation test because “members of the proportionately
underrepresented sex have demonstrated interest sufficient for a universityfunded varsity team that is not in fact being funded.”236 Essentially, the
court seems to command that no matter how much interest is shown by
the male athletes at an institution, if female athletes show an interest in
any sport, its interest must be met 100%.237 In addition, according to
the district court, “the unmet interests of the underrepresented sex
must be completely accommodated before any of the interests of the
overrepresented gender can be accommodated.”238 If this slant is read
into the meaning of “Effective Accommodation,” an entire class of
interests would almost certainly always be under-accommodated–the
over-represented sex, men. Although the Policy Interpretation
specifically mandates that “athletic interests and abilities of [both] male
and female students must be equally effectively accommodated,”239 by
only trying to meet the interests and abilities of women, the Cohen
court has interpreted Title IX to imply a requirement to provide
opportunities for women at the expense of men’s wants and needs.240
The court rejected Brown’s proposal for fully and effectively
accommodating the interests and abilities of each sex in proportion to
235
.
Cohen III, 879 F. Supp. 185, 189 n.5 (D.R.I. 1995).
. Cohen IV, 101 F.3d at 194 (Torruella, C.J., dissenting).
237
. See id. at 196.
238
. Id.
239
. Policy Interpretation, 44 Fed. Reg. 71,413-14 (1979).
240
. See supra notes 9-16 and accompanying text.
236
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the measured interests among each sex because it did not trust the
ability of any institution to effectively assess the actual interests of each
sex.241 It argued that this proposal would ultimately “lock in the status
quo, a status quo created by past discrimination.”242 The court should
have realized, though, that if subjective interests are read out of the
third prong and if excessive opportunities are provided to only one sex
based entirely upon its characterization as the historically
underrepresented sex, a quota system is ultimately created, and the
entire purpose of Title IX is ignored.243 The court should have been
guided by its own words that “the mere fact that there are some female
students interested in a sport does not ipso facto require the school to
provide a varsity team in order to comply with the third benchmark.”244
b. The Cohen Court Applied Too High a Standard as to the “Fully
Accommodating” Language
It seems as though the Cohen court has established too high a standard for
establishing exactly what “fully accommodating” means, in that it never
adequately defined the term “fully.” Looking at the term in relation to the
purposes behind Title IX and the Effective Accommodation test within the
third prong of that analysis, it appears as if there are many possible
definitions. As is mentioned by Brown, there are at least two possible
meanings that Congress may have intended: (1) to meet 100% of the
underrepresented gender’s unmet reasonable interests and abilities; or (2) to
meet the underrepresented gender’s unmet reasonable interests and abilities
“as fully as it meets those of the over-represented gender.”245 Based on its
tendencies as seen so far in this analysis, it is obvious why the Cohen
court would opt for the definition with the highest standard—that a
university must meet 100% of the interests of women’s unmet interests
before any of the male’s interests may be accommodated.246 But again,
by choosing to define “fully” in such a way, the court has mandated an
extraordinarily high, if not impossible, requirement for any university
to meet, and has simultaneously created another aspect of a quota.247
241
See Cohen III, 879 F. Supp. at 208-10.
Straubel, supra note 164, at 1054 (footnote omitted) (referring to
the court’s rejection of Brown’s proposal for compliance under the third
prong of the Effective Accommodation test).
243
. See Pederson v. Louisiana State Univ., 912 F. Supp. 892, 913-14
(M.D. La 1996).
244
. Cohen II, 991 F.2d 888, 898 (1st Cir. 1993).
245
. Cohen IV, 101 F.3d 155, 194 (1st Cir. 1996) (Toruella, C.J.,
dissenting).
246
. See id. at 196.
247
. See id.
242
.
.
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According to the Cohen court’s interpretation of this part of the third
prong analysis, a university could never comply with Title IX.
4. Overall Rejection of the Cohen Court’s Interpretation of the Effective
Accommodation Test
Pursuant to Title IX, colleges and universities do not have to provide
athletic opportunities to any of its students—male or female.248 Title IX
does, however, provide that if the school provides any athletic
opportunities, it must provide “equal athletic opportunities” to women
and men.249 In addition, such a school cannot discriminate against
either group because of their sex.250 Although this mandate created by
Title IX seems relatively simple to comply with, most recent Title IX
jurisprudence (especially Cohen) shows that courts have been
misinterpreting the guidelines delineated for compliance.251 Not only
has the intent of Congress as exhibited by the statute’s plain meaning
and its regulations (including the Policy Interpretation) been abolished,
but Title IX instead has developed into a quota-based scheme.
The Cohen court, through its analysis of the three prongs, failed to
identify a key concept of the Effective Accommodation test: that
interest and ability to participate in athletics should have previously
existed in order to even question a university’s compliance with Title
IX.252 Without such interest in the first place, it is impossible for it to
go unmet and therefore violate the third prong. In addition, “[t]he
existence of one or two students with interest and ability to participate
in sports likely would not constitute a basis for a claim of ineffective
accommodation and thus, violation of Title IX.”253
Unlike the strict and almost impossible-to-meet standards for
compliance relied upon by Cohen, a school should be able to comply
under any of the three prongs by showing that particular students on its
campus have certain abilities and interests, and then meeting them
accordingly. Better yet, the rigors of the Cohen analysis could be
totally avoided by athletic directors in this country gaining knowledge
regarding its student body, “effective[ly] analy[zing] . . . [past and
present] students’ [wants and] needs and filling them in [a] non-
248
. See Pederson v. Louisiana State Univ., 912 F. Supp. 892, 905
(M.D. La 1996).
249
. See id.
250
. See id.
251
. See cases cited, supra note 11.
252
. See Cohen IV, 101 F.3d at 193-94 (Toruella, C.J., dissenting).
253
. Id. at 906.
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discriminatory fashion.”254 Instead of relying on the interpretation of
the Cohen court, which allows universities to resort to quotas to fulfill
unmet needs based on past discrimination, a school will avoid this
necessity just by understanding the language Congress used in Title IX.
D. Not Acknowledging and Not Measuring Interest Levels Was Another
Aspect That Led to a De facto Quota Scheme
Title IX regulatory tools provide that “athletic interests and abilities of
male and female students [are to] be equally and effectively accommodated
[at all times by institutions receiving federal funding].”255 But according to
those who have experienced coaching of both men and women at the
college level, many will agree that given the same opportunities and
encouragement, females will not participate in athletics at the same rate
as males.256 As stated previously, if women do not share the same
levels of interests and abilities as men, they should not nevertheless still
be provided with additional opportunities. Since women are not taking
advantage of opportunities to participate in athletics at the same rate as
men, then “[t]he effort to implement Title IX must be adjusted either to
take this different level of interest into consideration or to improve the
interest level among women.”257
A simple, yet efficient, way to measure whether women share the
same interest in intercollegiate athletics as men is to statistically
analyze and assess participation rates, interest levels and ability levels
among the population of college-age women. In fact, Brown offered
the Cohen court statistical evidence that exhibited that women
254
Id.
Policy Interpretation, 44 Fed. Reg. 71,413, 71,414 (1979).
256
See Straubel, supra note 164, at 1041-42 (citation and footnote
omitted). Coach Straubel has coached for ten years at a university where
the student body was regularly more heavily female populated than
male. See id. at 1042. More men, however, have consistently turned out
to participate in intercollegiate athletics than women. See id. In each of
his ten years coaching Cross Country at Valparaiso Univeristy, Coach
Straubel estimates that 4 to 10 more men exhibited an interest and
ability to participate in the sport than women. See id. n.12. In fact, in
1996-97, twenty-three men as opposed to thirteen women participated
on said teams. See id. Furthermore, according to the NCAA, in the
1993-94 academic year, the average squad size for Men’s Cross Country
was 13.5, and for Women’s Cross Country, 11.8. See Participation
Numbers Narrowly Miss Record, NCAA NEWS, July 19, 1996, at 1, 13.
257
. Straubel, supra note 164, at 1042.
255
.
.
.
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generally have less interest in sports than do men.258 Brown asserted,
through this offering, that its so-called “disparity between athletic
opportunities for men and women [only reasonably] reflect[ed] a
gender-based difference in interest levels.”259 The court, however, did
not allow any of it to be admitted into evidence.260 It claimed that all
this evidence represented was an “‘unproven assertion.’”261
It seems very contradictory for the court not to allow this evidence
into the proceeding because it believed it was “unproven.” By
providing such persuasive evidence, not only did Brown prove that
women in general have less interest in athletics, but it also exemplified
that its own matriculating students have followed this same pattern.
The only explanation that would account for the court’s reasoning is
that the court, through use of Title IX, is trying to repair the wounds
created by discrimination of the past. Ultimately, however, it is only
hurting its own cause, for it is using a nondiscrimination statute to
plainly provide opportunities for women at the expense of men.
In addition to Brown’s interest surveys, the University also offered
an alternative for providing proportional participation opportunities
under the Effective Accommodation test.262 This argument again
centered around the fact that Brown offered “the chance to participate
in athletics to an equal number of men and women,” thus fulfilling the
258
. See Cohen IV, 101 F.3d 155, 198 (1st Cir. 1996). Brown sought
to introduce into evidence an NCAA Gender Equity Study and, in
addition, a poll on student interests in athletics. See id. (Torruella, C.J.,
dissenting). Brown’s evidence included:
(i) admissions data showing greater athletic interest among male
applicants than female applicants; (ii) college board data showing greater
athletic interest and prior participation rates by prospective male
applicants than female applicants; (iii) data from the Cooperative
Institutional Research Program at UCLA indicating greater athletic
interest among men than women; (iv) an independent telephone survey of
500 randomly selected Brown undergraduates that reveals that Brown
offers women participation opportunities in excess of their representation
in the pool of interested, qualified students; (v) intramural and club
participation rates that demonstrate higher participation rates among men
than women; (vi) walk-on and try-out numbers that reflect a greater
interest among men than women; (vii) high school participation rates that
show a much lower rate of participation among females than among
males; [and] (viii) the NCAA Gender Equity Committee data showing that
women across the country participate in athletics at a lower rate than men.
Id. at 198 n.30.
259
. Id. at 198.
260
. See id.
261
. Id.
262
. See Cohen III, 879 F. Supp. 185, 204 (D.R.I. 1995).
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equality requirement.”263 The Cohen court, however, struck down this
argument as quickly as it had the other.264 The court explained that
student interests could not be accurately measured, for there would be
a problem with selecting an appropriate “qualified applicant pool.”265
Moreover, the court asserted that using this sort of measure would fail
to take into account the changing interests of students or how
opportunities could drive interests.266
This argument is very weak, however. There are many reliable ways
to determine each and every student’s interests on Brown’s campus.
For example, the university could determine interests of members of
both sexes based on: student requests that a sport be elevated;
participation levels for both sexes in club and intramural sports;
interviews with students, coaches, and administrators on campus; and
even a simple questionnaire attached to the university’s admission
application.267 From these methods of interest evaluation, a school
could conclude that a certain level of interest exists, and it could thus
appropriately provide opportunities in proportion with the measured
and true interest, rather than a created interest as determined by the
Cohen court.
Once certain interest levels are determined, the “OCR specifically
recognizes that compliance with Title IX can include competition on
levels other than the intercollegiate level, i.e., the club or intramural
level.”268 In fact, the Policy Interpretation provides that certain
interests may exist that do not necessitate creation of varsity athletic
opportunities; accommodation of these interests exists only when
“[t]here is sufficient interest and ability among the members of the
excluded sex to sustain a viable team and a reasonable expectation of
intercollegiate competition for that team.”269 This language makes
perfect sense. It would be economically inefficient if each school were
required to create a varsity team when a women yells “I have an
interest, I think.” The Cohen court, however, disagreed. The court
263
. Id. Furthermore, Brown defined participation opportunity as a
“chance for an interested person to participate.” Id.
264
. See id. at 206.
265
. Id.
266
. See id. at 205-07.
267
. See Pederson v. Louisiana State Univ., 912 F. Supp. 892, 915
n.61. (M.D. La. 1996).
268
. Id. at 916. The regulations note that “a recipient which operates
or sponsors interscholastic, intercollegiate, club or intramural athletics
shall provide equal athletic opportunity for members of both sexes. The
inquiry is not limited solely to varsity intercollegiate activity.” Id. at 916
n.63.
269
. Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (1979).
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wanted to “put the power to control athletics and the provision of
athletic resources in the hands of the underrepresented gender.”270
According to the court’s reasoning, unless members of both sexes
equally participate in athletics, the underrepresented sex will be able to
demand a varsity level team whenever they can show sufficient
interest.271 To maintain compliance with this reading of Title IX’s
Effective Accommodation analysis, men’s interests are ultimately
ignored.272 Because, according to Cohen’s interpretation, a school will
have to use all of its energy and resources to fully accommodate each
and every woman’s interest on its campus, men’s equivalent interests
will continue to go unmet for lack of additional time, energy and
resources.273 As Brown appropriately put it, “so long as women
remain the underrepresented gender and their interests are fully
accommodated, the university can provide as many (or as few)
additional slots for men as it sees fit.”274
V. CONCLUSION: A BETTER READING OF TITLE IX
Although Title IX has created expansive opportunities for women across
the United States, it is hard to applaud such a statute based on the Cohen
opinion since it disturbs Congress’ intent for the nondiscrimination statute.275
Many courts, in addition to Cohen, have had grave difficulties
interpreting the scope and compliance measures mandated by Title
IX.276 Looking at the plain language of the statute, however, it is very
difficult to understand exactly where these courts went wrong.
Ultimately courts like Cohen have forced universities to discriminate
against men through misapplication of the statute and its regulatory
tools.277 Unfortunately, however, “[t]his misapplication reached a
pinnacle in Cohen v. Brown University, where ironically, a school
which offers women’s athletics in numbers triple the national average
was found to discriminate against women.”278
270
. Cohen IV, 101 F.3d 155, 198 (1st Cir. 1996) (Torruella, C.J.,
dissenting).
271
. See id.
272
. See authorities cited, supra note 13.
273
. See Cohen IV, 101 F.3d at 198.
274
. Cohen II, 991 F.2d 888, 899 n.16 (1st Cir. 1993).
275 .
See supra notes 30-35 and accompanying text.
276
. See supra notes 160-81 and accompanying text; see also supra
notes 11, 13.
277
. See supra notes 195-274 and accompanying text.
278
. Bernardo, supra note 13, at 360-61.
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As explained throughout this Comment, many schools have
improved women’s athletic opportunities, staying in compliance with
Title IX, by dropping various men’s athletic teams.279 In addition,
many lawsuits have been filed in protest of these cuts in men’s teams
and scholarships, but have been unsuccessful in creating a balance
which would be in compliance with Title IX.280
When Title IX was enacted, Congress intended to provide more
funding for women’s athletics; however, instead, schools have had
little extra money, if any, to spend on athletics as a whole, have had to
make difficult choices in light of Title IX, and have as a last resort,
dropped men’s teams to ensure equal participation of women.281
For example, Providence College, in order to create athletic
opportunities for women, has had to take athletic opportunities away
from men.282 According to Reverend Philip A. Smith, president of
Providence College, “[t]his gender equity plan will enable Providence
College to meet the requirements of Title IX.”283 As an alumnus and a
woman, one would think that I would applaud this result. However,
having personally known many athletes at Providence, especially its
women athletes, I know that female athletes at P.C. were and are
completely accommodated by the existing athletic program.
Providence chose to eliminate the three men’s teams for the sole
reason of bringing its intercollegiate athletics program into compliance
with Title IX. In addition, being a cross-town neighbor to Brown
University, Providence saw first hand what may happen if it did not
comply with Title IX. According to P.C.’s Athletic Director, John M.
Marinatto,
the elimination of the [three] men’s programs plus instituting roster maximums
for the remaining [eight] teams and minimums for the [eleven] women’s teams,
will leave PC with about 300 intercollegiate athletes, 57 percent female and 43
percent male. The total is about [eight] percent of PC’s student body of 3,600,
279
. See supra note 13.
. See supra note 13.
281
. See supra note 13.
282
. See Donaldson, supra note 164, at 2.
283
. Id. This statement was made as Providence College decided to
eliminate its men’s baseball, golf and tennis varsity sports in order to
create more athletic opportunities for its women. See id. On October 6,
1998, the administration at Providence College “told 57 baseball
players, tennis players and golfers that their careers were ending because
of the college’s need to comply with federal regulations.” Mike Szostak,
‘It Was Not a Proud Day’ for P.C., PROVIDENCE J.-BULL., October 8,
1998, at D07, available in 1998 WL 19869839.
280
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a participation percentage in the Big East exceeded only by Georgetown and
Villanova.284
Ironically, however, the women at P.C. were not happy about this
result.285 Beyond the results reached above, universities can, however,
simultaneously comply with Title IX and meet each gender’s interests
to the same degree. With new and improved tests for better
interpretation of Title IX, universities could distribute athletic
resources in a nondiscriminatory manner. First, courts should realize
that participation opportunity does not really mean numbers already
participating, for actual participation will reflect individual decisions by
men and women alike as to whether they prefer to participate in
athletics at all. Based on those expressed interests, participation
opportunities can properly be counted.
Next, the court should acknowledge that interests and abilities
cannot be created; they are innate decisions and feelings, and will
manifest themselves without help from the court. “You cannot
legislate athletic interest. If somebody doesn’t want to play a sport,
you can’t make them.”286 In addition, the court must also investigate
the interests and abilities of men as well as women, instead of passing
them over as the Cohen court did; in discussing effective
accommodation of students’ interests, the Cohen court did not take
into account the interests and abilities of the overrepresented gender.287
The court should examine the rate at which each gender’s interested
and able members are being accommodated. As long as each gender’s
284
. Id. Although the P.C. student body is 59 percent female and 41 percent
male, before the cut, women made up 47 percent of the athletes. See id. However,
this percentage has proven to be higher than most schools in the Big East.
285
. According to Father Keegan, a Providence Administrator,
“[w]omen athletes on campus are up in arms. This is not what they
want.” Id. In fact, on October 7, 1998, at Providence College’s Alumni
Gym, approximately 275 students staged a sit-in, in protest of the
school’s cuts. See Rick Reilly, et als., Scorecard, SPORTS ILLUSTRATED,
Oct. 19, 1998, at 23, available in 1998 WL 15923105. More than 100
of the protesters were women, most of which were members of various
women’s athletic teams. See id. One member of the field hockey team,
who stood to benefit from the reallocation of athletic funds stated at the
protest that “[w]omen athletes want more opportunities, but Title IX
wasn’t designed to take away opportunities from others . . . .” Id.
Furthermore, another stated that “[s]omebody better do something soon
to fix the law because right now it hurts more athletes than it helps.” Id.
286
. Donaldson, supra note 164, at 2.
287
. See Cohen IV, 101 F.3d at 198.
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relative interest rates are being met to the same degree, a university
should be found in compliance with Title IX.288
Finally, and probably most importantly, any court that is lucky
enough to see a Title IX case in front of it in the near future should
embrace the chance to finally interpret Title IX as Congress had
intended. Simply stated, a university may not discriminate against
anyone on the basis of sex because “‘[i]nherent differences’ between
men and women, we have come to appreciate, remain cause for
celebration, but not . . . for artificial constraints on an individual’s
opportunity.”289
The heart of Title IX—GENDER EQUITY—is an admirable
concept and has been a goal within many organizations. However, the
courts and, as a result, universities, are now taking this concept to a
ridiculous extreme.290 Eliminating sports was never the intent of Title
IX, however, in fear of noncompliance, schools have seen no other
solution.291 While equality is laudable, and in fact, desirable,
proportionality, as the Cohen courts would suggest is the correct way
to measure equality, is ludicrous.292 There has got to be a better way.
As appropriately stated:
Men in nonrevenue-producing sports will continue to feel vulnerable, and cries
of “reverse discrimination” will be heard. But the values of athletic
competition, long extolled for men— teamwork, leadership, discipline, work
ethic, self-sacrifice, pride in accomplishment, strength of character— serve
women equally well. Gender equity in athletics is about sharing and
opportunity, and it is the mission of athletic departments not to lose sight of that
as they continue to try to offer them on an equal basis.293
Jennifer Lynn Botelho
288
See Donaldson, supra note 164, at 359.
Cohen IV, 101 F.3d at 197 (citations omitted).
290
. See. e.g., supra note 283.
291
. See. e.g., supra note 283.
292
. See Donaldson, supra note 164, at 2.
293
. See Sports, Female Athletes and the Law, TAMPA TRIB., Mar. 12, 1997, at
12, available in 1997 WL 7039426.
289
.
.