According to University spokesman Robert A. Reichley, executive vice president (alumni, public affairs and external relations), Brown will be reviewing the court's decision carefully and cannot comment further on the specifics of the injunction.
Julius Michaelson, counsel for the University in this matter, noted that Title IX is a statutory and regulatory area of enormous complexity. The court stated that "To a large extent, the dispute in this case revolves around differing interpretations" of the policy interpretations and investigator's manual issued under the statute. In fact, Michaelson noted, the court in its decision specifically pointed out that there is virtually no decided caselaw on this point.
The law requires that an institution equally accommodate the interests and abilities of its male and female students, Michaelson noted. Brown believes that the ratio of its male to female intercollegiate athletes mirrors the interests and abilities of its students. Plaintiffs in this suit offered no evidence of the interests and abilities of students to perform at the intercollegiate level. Instead, they argued that Title IX requires the participation ratio of male to female athletes to be the same as the ratio of males to females in the undergraduate student body.
Faced with significant financial concerns, Brown University, a national leader in women's sports, determined that it needed to reduce the size of certain programs throughout the University in order to maintain quality. That decision was not an easy one. In the intercollegiate athletics program, it meant reducing the number of varsity teams. The teams selected affected men and women in roughly the same proportion as they participated.
"On the one hand, the court concluded that Brown has the ultimate discretion in how it chooses to structure its intercollegiate athletic program," Michaelson said. "On the other hand, however, the court took that discretion away by requiring reinstatement of the women's teams. The implications of that decision are enormous."
Title IX specifically recognizes the right and need for an institution to tailor its athletic program within its own peculiar circumstances. The Office for Civil Rights, the agency to which enforcement of Title IX was exclusively entrusted by Congress, has specifically recognized that an institution need not have any intercollegiate athletic program, nor, if it does have one, that such a program be of any particular caliber or contain any particular sports. "It is clear that Title IX leaves it up to an institution how to structure its program," Michaelson said. "Interference with this autonomy would put a straitjacket on an institution's ability to maintain its academic quality, to self-determine its `personality' and priorities and would elevate intercollegiate athletics, a non-academic area, to the highest institutional priority."
Plaintiffs offered evidence by certain individuals alleging unfair treatment of certain teams. These allegations arose for the first time in the context of the present suit. There had never been a complaint in this regard prior to the suit, either to the government agency responsible for accepting and investigating Title IX complaints or to the University. No complaints regarding any alleged inequities were made to either the president or any other person, committee or entity responsible for athletics, despite numerous meetings and opportunities for virtually every member of the Department of Athletics and Physical Education to communicate with them.
It is through the institution of coherent University-wide policies, the setting of priorities and the making of difficult decisions and choices that Brown has built and maintained its stature as one of the finest academic institutions in the nation, Reichley said. The University has made reductions and restrained the growth of its budget in order to maintain the quality of a Brown education. These reductions have affected every department within the University except library acquisitions and financial aid, which were specifically exempted by President Gregorian. Reductions in intercollegiate athletics have been part of the process, and both male and female athletes have been affected. Any other result would have been discriminatory.
Brown University intends to challenge the granting of this preliminary injunction and, after conferring with counsel, may seek to stay the preliminary injunction pending a hearing on any such appeal. Under the facts of the present case, Title IX does not require an institution to field any particular team. Where the court seeks to do temporarily what it cannot do on a permanent basis, the court may have overstepped its authority.