Brown University v. Cohen: A Pyrrhic Victory for Feminists

Civil Rights Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

Melinda Sidak

The U.S. Supreme Court's recent refusal to hear the case of Brown University v. Cohen means that the transformation of Title IX from an equal opportunity and antidiscrimination law to a rigid and arbitrary quota system is now complete. The practical effect of the Brown decision, as well as decisions by several other federal appeals courts, is likely to have several perverse effects. Intended as a means of expanding opportunities for women to participate in college sports, in practice the new quota system will force colleges to cut sports participation opportunities for men. In addition, the courts' quota-based interpretation of Title IX, which applies broadly to all college and secondary school programs, ultimately could damage women's opportunities to participate in many nonathletic educational activities.

Title IX of the Education Amendments of 1972 requires educational institutions receiving federal funds to provide equal opportunities to their students without discrimination on the basis of sex. Since that time, tremendous progress has been made in the athletic opportunities available to women. College and secondary school programs for women have been vastly expanded and the number of women participating in intercollegiate sports has soared. Gross disparities in facilities, equipment and coaching have been corrected. Thus, by the common-sense standards of the ordinary, reasonable person Title IX has been a success in overcoming the many barriers that once existed to women's enjoyment of and participation in college and high school sports.

Unfortunately, ordinary reasonable people applying common sense standards do not comprise the majority of either the Department of Education Office for Civil Rights, which enforces the law, or the federal judiciary, which interprets the law. They believe that "equal opportunity" and "antidiscrimination" mean rigid proportionate group representation, regardless of the interests and abilities of the individual members of the group.

Reduced to its essentials, the federal courts and the Department of Education have ruled that Brown University discriminated against women because women comprise only 35 to 40% of Brown's varsity athletes while they represent approximately 50% of the undergraduate enrollment. The problem is that notwithstanding the diligent and expansive efforts by Brown and other schools over the past two decades to encourage women to participate in sports, men and women consistently demonstrate different interest levels in playing competitive sports. The disparate interest levels of men and women in sports appear over and over in nationwide and individual college surveys, as well as in the actual numbers of men and women who participate in both high school and college sports. Thus, even if women make up half the student body, they are unlikely to supply half of the college athletes.

The combination of these realities, along with limited resources, means that many schools can comply with this new interpretation of Title IX only by denying opportunities to men. While lucrative football and basketball programs are unlikely to be cut, in the wake of the federal appeals court's decision in Brown, schools already are busily axing non-revenue sports such as lacrosse, wrestling, swimming and baseball. In addition, experts are predicting limits on how many men may try out or make the team in order to meet the new quotas.

Proponents respond that they are not seeking to limit opportunities for men, but simply to force school to have more programs for women. The problem, however, is that women are not taking advantage of the opportunities already out there. Many college women's teams cannot fill their squads. For example, the average NCAA baseball squad size in 1995 was 29.76. The average NCAA women's softball team was 17.1. In men's and women's track and field the numbers are 30.3 and 24.3, respectively, and in lacrosse 31.4 men to 22.4 women. Unless colleges force more women to participate, they must add more and more women's teams, even though there are many unused opportunities on teams that already exist. Moreover, because most schools already offer programs with broad appeal to women, it also will necessarily involve adding programs with very narrow appeal.

Even if schools could afford so extravagant a program, however, women ultimately would have to be accorded a greater number of programs than men to keep the overall number of participants equal. After all, there already are about 7,000 men's NCAA programs and 6,900 women's, yet there are about 190,000 NCAA male athletes and 110,000 women. Unless men's opportunities are curtailed significantly, colleges conceivably would have to invent new women's sports to get the numbers up, even assuming schools could afford them.

The bottom line is that no matter how a school chooses to comply with the new quotas, whether by cutting men's programs, limiting the size of men's teams, or creating more and more women's teams, male athletes necessarily will be denied opportunities compared with those available for women in order to equalize the numbers.

Feminists are hailing Brown as a victory for women. Lynette Labinger, the plaintiff's attorney in the case, contends that Brown erroneously thought that it could measure women's "unspoken and unrealized interests and ability to participate in sports." In other words, the problem is not that women and men in fact have demonstrated and expressed different interest levels in competitive sports, the problem is that women simply don't know what they want -- or, perhaps, what some feminists think they should want.

But it is not so clear that this decision and the ideal of proportionate representation that it embodies ultimately will benefit women. Title IX doesn't just apply to sports -- it applies to all school programs -- including those in which women have a disproportionate interest relative to men. Data collected by Brown about the interest of its applicants for admission in participating in selected activities show, for example, that 91% of all applicants expressing an interest in dance are women, 56% of all applicants expressing an interest in drama are women, and 66% of all applicants interested in music were women. The logic of the new Title IX means that if one or more men are denied spaces in oversubscribed acting, dance, or music classes or activities, they could demand that women be dropped to make room for a number of men proportionate to their enrollment in the study body. If one or more men believes that plays presented by the Drama Department do not offer an adequate number of parts for men or do not cater to their particular dramatic tastes, similar demands could be made.

Conversely, Department of Education statistics show that 69% of Bachelors Degrees awarded in physical sciences in 1989/1990 were earned by men while 85% of the engineering degrees went to men. Proportionate representation, however, would seem to require that fewer degrees be awarded to men, thus reducing the overall number of qualified scientists and engineers. It's hard to see how this benefits women; indeed it would hurt men and women alike.

Now that the courts have spoken, quota-based enforcement by Clinton Department of Education appointee Norma V. Cantu, an enthusiastic proponent of racial and gender preferences even in instances where the courts have declared them illegal, is certain to become even more heavy handed. It is therefore up to Congress to clean up the mess and restore common sense to Title IX enforcement.

That is hard for several reasons. First, the original language and legislative history of Title IX shows that Congress expressly intended that preferences and quota system were not required. As with the Civil Rights Act, which contained similar antipreference language, however, the courts and regulatory agencies have simply ignored the plain words of the law and substituted their own notions about the meaning of equality. Thus, any clarifying amendments by Congress must be utterly unambiguous and elaborately detailed.

Second, most members of Congress of both parties are utterly spineless when it comes to standing up to feminist demands, no matter how contrary to common sense or to the real interests and desires of ordinary American women. Most are too terrified of being labeled "sexist" by the media and feminist pressure groups even to question their demands.

But a quota system for educational opportunities based on false assumptions about the fungibility of men and women ultimately harms both sexes. Congress must find its nerve and restore the original understanding of Title IX. Don't hold your breath.

Melinda Sidak is a lawyer and a member of the National Advisory Board of the Independent Women's Forum in Washington, D.C.