I. INTRODUCTION

This Compliance Plan is submitted by Brown University in accordance with the Mandate of the Court of Appeals for the First Circuit and the Order of the District Court entered February 24, 1997. Since Brown has asserted, and continues to assert that its program does not violate Title IX, this Plan is submitted without prejudice to Brown University's rights to Appeal from any Orders entered concerning Title IX compliance and/or the previous decisions of the District Court or Court of Appeals.

Brown's Criteria

The Compliance Plan is fashioned with consideration for the longstanding guiding principles which Brown has incorporated in its athletics programs, and these principles represent Brown's institutional preferences and priorities:

• Since Brown's current lineup of intercollegiate teams is principally the result of historical development of teams based upon student interest and ability, and reflects investment of University resources, development of donor support and fosters strong alumni loyalty and support, it is Brown's desire to avoid eliminating any existing teams which continue to meet the minimum requirements for operation within the University's priorities.

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• Offer the maximum number of opportunities to participate in intercollegiate competition within the practical limits of facilities and budgets and with regard to the availability of competition within the Ivy League and within practical geographic limits.
• Add no additional sports which would further distress already overtaxed facilities, taking into consideration the intramural, physical education and recreational needs of the entire University Community.
• Attempt to maintain matched sports in the same funding category if possible.
• In light of the number of intercollegiate teams currently offered, which are approximately double the national average, comply with Court requirements through Prong One or Prong Two¹ to the extent possible.
• Offer new intercollegiate competition only to those teams which demonstrate increasing interest, sustained and sustainable ability to attract suitable numbers of athletes, demonstrated fundraising abilities, and appropriate competitive opportunities.
• Given the expense of maintaining University-funded status, those teams which repeatedly fail to achieve minimum team sizes will be reclassified to Donor-funded status until such time as they reestablish stability at a level justifying University-funded status. Donor-funded teams which are unable to achieve participation within minimums or fundraising ability will be subject to reclassification as Club teams.

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If the District Court rejects this Compliance Plan or the proposed Alternative Plan for any reason, Brown would like the opportunity to evaluate and address the basis for such rejection. Without waiving any and all appellate rights, Brown is desirous of submitting a plan of its own devise which is both satisfactory to the Court and consistent with Brown's academic freedom, within its economic limitations and consistent with its own priorities, academic and athletic.² Therefore, Brown respectfully requests that it be given the opportunity to respond to any perceived shortcomings in this document, by way of modified proposal, additional supporting evidence and/or hearings, as necessary.

The Court's Criteria

This Compliance Plan seeks to achieve compliance with the District Court's March 29, 1995 decision, reported at 879 F.Supp. 185(D.R.I. 1995), within the guidelines set forth in the District Court's August 17, 1995 decision rejecting Brown's first Proposed Compliance Plan.³ The District Court's findings include:

• "Brown may achieve compliance ... [by] demot[ing] or eliminat[ing] the requisite number of men's positions...." March 29, 1995 Opinion, p. 67.

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• Title IX compliance can be achieved by a program where "intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments." (Quoting Prong One).
• Under the District Court's Prong One analysis, the ratio of male and female student-athletes must "mirror[] the student enrollment as closely as possible." March 29, 1995 Opinion, at 37.
• Participation is measured by the number of student-athletes whose names appear on Squad Lists for Varsity teams, excluding those who were cut or quit (except if "very late" in the season), but does include injured team members.
• Creation of new Junior Varsity teams for women will not be counted.

II. OVERVIEW OF COMPLIANCE PLAN

Through a combination of significant and substantial increases in the intercollegiate participation of women at Brown, as noted in Brown's evidence and Post-Hearing Memorandum, and experience in imposing maximum squad sizes on men's teams, Brown has determined that, under the conditions stated in this Plan, and within the requirements imposed by the Court, Prong One compliance remains possible without having to entirely eliminate men's teams or having to create additional University-funded varsity teams.

The Compliance Plan achieves compliance with Prong One by:

• eliminating men's positions without eliminating any men's teams.
• enforcing team minimums and maximums to stabilize relative proportions of men and women.
• creating additional women's intercollegiate opportunities consistent with both the District Court's analysis and Brown's physical and budgetary limitations. This Compliance Plan offers Brown's students, athletes and non-athletes, the broadest possible educational/athletic offering and retains continuity in Brown's
  

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  sports program and its tradition of offering the broadest possible range of sports within the limits of facility and budgetary constraints.⁴

The Compliance Plan results in intercollegiate participation on University-Funded and Donor-Funded teams of 487 women and 431 men, a ratio of 53.1% women to 46.9% men. The undergraduate student body ratio for 1996-1997 was 53.8% women and 46.2% men.

While Brown believes that this Compliance Plan "mirrors" the undergraduate student body ratio of women and men, Brown has also proposed Alternatives A and B, which would change the funding status of or eliminate men's teams if this Compliance Plan is not acceptable to the Court.

Compliance Plan Methodology

The Compliance Plan uses the following methodology:⁵

Step 1: Count the number of women who participated in 1996-1997 on Varsity teams, using the District Court's methodology;⁶

Step 2: Ascertain whether there is any reasonable basis to conclude that those participation numbers will differ significantly in the next academic year, and, if so, adjust the number derived in Step One;

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Step 3: Calculate ratio of men to women in current academic year's undergraduate student body;

Step 4: Determine number of male athletes which will result in gender ratio of student-athletes being exactly proportionate to undergraduate student body ratio, according to the following formula:

# of female athletes      % of female undergraduates
--------------------  =  ----------------------------
# of male athletes        % of male undergraduates

In applying the formula, all values except "# of male athletes" are known, and the formula is solved to render the number of male athletes which would achieve exact proportionality; and

Step 5: The number of male athletes permitted is allocated among existing teams as a maximum number per team. Under the Compliance Plan, the maximums are allocated to result in participation which mirrors, as closely as possible, the undergraduate student body ratio, given the selection of existing sports, the interest historically shown in those sports and the desire to offer athletic opportunity to student-athletes to the maximum extent possible within the limits set by the Court. This maximum is strictly enforced by requiring coaches to cut rosters to the stated maximum prior to the first regular competition, which comports with the District Court's method of counting.⁷

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Alternative Compliance Plans

In the event that the District Court rejects Brown's Compliance Plan, Brown reiterates its position that it cannot create additional University-Funded teams under any circumstances.

Therefore, the Court is advised that, if the Compliance Plan, as submitted or modified by Brown in response to specific concerns of the Court, is not acceptable, then Brown proposes the following alternatives:

A. In the event that this Court chooses to apply an analysis which differentiates between University-funded and Donor-funded teams, and such analysis requires gender balancing within one or both of those categories for purposes of Prong One compliance, then Brown proposes to change the status of one or more men's teams from University-funded to Donor-Funded Status; or

B. Outright elimination of one or more men's Varsity teams.⁸

III. APPLICATION OF COMPLIANCE PLAN

Step One: Following are 1996-1997 actual female participation figures⁹ as calculated from Squad Lists as counted by the District Court¹⁰ and 1996-1997 minimums:

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Step Two: The anticipated participation for women in the 1997-1998 academic year is expected to differ from the 1996-1997 participation in the following respects:

• Women's Lightweight Crew will be added as a Varsity division to the Women's Crew Team. This is an emerging sport which offers the opportunity for new athletes to compete at the varsity level in regular season competition.¹¹ Based upon the needs of a team, the

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  experience Brown has in recruiting women's Crew teams and the experience of other institutions which have sponsored Women's Lightweight Crew teams, expected participation in this sport for 1997-1998 is at least 25 women;

• Women's Water Polo will be changed to a Donor-Funded Varsity team. Participation is expected to be at least 16 women;¹²
• Given the stringent requirement that participation numbers mirror undergraduate participation, minimum participation numbers will be strictly enforced. Based upon previous experience, it is clear that many coaches are able to exceed their minimums. However, certain coaches have failed to meet their minimums for reasons beyond the control of the University. Therefore, minimum roster sizes will be adjusted/imposed and enforced as follows:

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Experience reveals that minimums will be exceeded, program-wide, but the exact distribution of those individuals beyond the minimums cannot be anticipated.

• Given the strict numerical balancing required by the Court, minimums will be strictly enforced under this Compliance Plan.

• Actual participation for women in 1997-1998 will be the total of 1997-98 minimums plus the number of athletes over those minimums who can be expected to participate. For purposes of this Compliance Plan, Brown assumes that the number of women athletes participating in excess of the minimums will be the same (although not necessarily on the same teams) as the number of actual participants in 1996-1997 on individual teams which exceed the 1997-1998 minimums, which are as follows:

Women's Participation in Excess of Minimums

In sum, enforcement of minimums plus expected participation over minimums should result in actual participation in 1997-1998 of 487.

Step Three: According to figures obtained from the Registrar, the undergraduate student body gender ratio for the 1996-1997 academic year was 46.2% male and 53.8% female.

Step Four: Apply formula:

# of female athletes      % of female undergraduates
--------------------  =  ----------------------------
# of male athletes        % of male undergraduates

which is calculated as follows:

        487               53.8
--------------------  =  ------
 # of male athletes       46.2

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and renders the following: # of male athletes = 418, which is the number of male athletes that would result in exact proportionality.

Step Five: Brown imposes the following maximum and minimum roster sizes on men's teams:¹⁴

• Experience during the 1996-1997 academic year with the application of team maximums reveals that, program-wide, it can be anticipated that the
  

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  total number of participants, as counted by the District Court, will be less than the total maximum number of athletes permitted, but it cannot be anticipated on which specific teams those shortfalls will occur. For example, in 1996-1997, while the maximum number of Men's University-Funded Athletes was 417, the actual participation number on those teams was 384, which renders an expected participation rate of not more than 92.1% of total permitted maximums. ¹⁵

• Based upon this experience, the actual participation produced by the application of the stated maximums is expected to result in participation at 92.1% of 468, or 431.

Assuming a program which has 431 male participants and 487 women, the relative percentages of men and women would be 46.9% male and 53.1% female, which Brown believes mirrors as closely as possible, within the meaning of the District Court, the 46.2% male to 53.8% female ratio of the undergraduate student body.

IV. CONCLUDING REMARKS

Brown has exerted its best good faith efforts to propose a Compliance Plan which comports with the District Court's analysis. It has never been Brown's desire to deny opportunities to any student-athlete with the ability and interest to compete intercollegiately. In fact, the genesis of this suit was Brown's decision, based upon budgetary constraints, to change the funding status of four teams, two men's and two women's, without eliminating the opportunity for Brown students to compete in the affected sports.

The Compliance Plan is as consistent with that philosophy as Brown believes that the District Court's analysis permits. Brown takes no comfort in proposing this Compliance Plan, which denies participation to many interested and able student-athletes, but, as between the 'rock' of the District Court's analysis and the 'hard place' of the financial reality of running a University, Brown has proposed a plan which, among distasteful alternatives, is the least distasteful.

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