1 As both the District Court and the Court of Appeals have noted, Brown's program was marked by explosive growth in women's sports in the 1970's, which made the Court's interpretation of Prong Two as requiring continuous, slow growth impractical for Brown and inconsistent with Brown's commitment to women's sports.
Nevertheless, the number of women participating in Brown's intercollegiate athletics has continued to grow as existing women's teams attract greater numbers of athletes. This growth is a positive reflection on Brown's commitment to women's athletics as it affects Brown's ability to attract, through recruited and non-recruited athletes, greater numbers of participants on existing teams.
Ironically, Brown's commitment to women, in such programs as the WISE (Women In Science And Engineering) program, which specifically seeks to increase women's participation in those studies, as well as the attractiveness of the entire Brown experience to women, have combined to increase the undergraduate percentage of women, with the result that Brown is now forced to mirror that growth in its intercollegiate athletics program.
2 Brown has consistently expressed, and continues to express that limitations on facilities and funds make it impractical and inconsistent with Brown's overall priorities to create new varsity teams as the University-funded level.
3 While Brown believes that the Compliance Plan comports with the District Court's analysis, the District Court previously rejected two alternatives which were offered to the District Court in good faith based upon Brown's interpretation of the District Court's method of counting opportunities, type and level of opportunity which the District Court counted and an assumption that such methods of counting would be applied equally to men's teams and women's team. The District Court summarily rejected both alternatives in the first Proposed Compliance Plan and, instead, Ordered a Plan of the Court's own devise, which was inconsistent with Brown's priorities, and was reversed by the Court of Appeals.
4 In this respect, Brown has maintained, and continues to maintain, that its facilities, while clearly outstanding, are severely strained given the demands of recreational, physical education, intramural, club and varsity programs. Under these circumstances, Brown has virtually nowhere left to grow, with the exception of specialized, exclusive use facilities, such as the Marston Boathouse, which are not subject to competing demands.
5 The chosen methodology lends itself to annual recalculation, and Brown anticipates that it will be employed annually in order to maintain compliance with the District Court's analysis of Prong One so long as Brown remains bound by that analysis.
6 Brown will continue to promulgate and enforce rules which will ensure that Women's teams attract and support athletes. These minimum requirements are consistent with proven past capacity of women's teams, barring circumstances justifying such increased minimums.
7 If required by the District Court, these maximums could be adjusted mid-season to offset any shortfall in the number of female athletes. Conversely, if permitted by the District Court, maximums could be increased mid-season to account for any increases in female participation over anticipated levels. However, Brown believes that such mid-season adjustments are both impractical and beyond the requirements of the Court's analysis. To the extent that actual participation varies and, with it, relative participation rates for men and women, Brown believes that such variance is within the Court's contemplation in its requirement that the proportions mirror "as closely as possible" undergraduate student body ratios. Furthermore, given the methodology which the Compliance Plan employs, adjustments will be made on an annual basis, thereby limiting any methodological error to one year.
8 If either Alternative A or B should ever be required, Brown proposes announcing which team is to be changed in status or eliminated before the beginning of the 1997-1998 academic year, to be effective commencing the 1998-1999 academic year. However, if this one year delay were not acceptable to the Court, Brown would change the status or eliminate the team effective the 1997-1998 year.
9 Actual participation figures included 5 women who fill positions on the Men's Crew team.
10 While the District Court's analysis of Prong One does not distinguish between University and Donor-funded teams, Brown designates funding levels as a convenience and because the District Court did so in its decision.
11 With the addition of Women's Lightweight Crew as part of the University-funded Women's Crew team, an additional Assistant Coach will be added. Funding for this additional position is available, in part, from the elimination of an Assistant Men's Football Coach. In addition, the U.S. Olympic Committee is considering a proposal to fund Lightweight Crew programs through grants.
12 Funding for the Donor-funded Women's Water Polo team will be provided by the Brown University Sports Foundation which, through restricted and unrestricted funding, as well as the existing funding guarantees available to all Donor-funded teams, are sufficient to insure funding for the 1997-1998 season. In that respect, inclusion of Donor-funded teams in the Compliance Plan analysis for the following academic year is predicated on the availability of funding.
13 Funding for the Donor-funded Women's Gymnastics team will be provided by the Brown University Sports Foundation which, through restricted and unrestricted funding, as well as the existing funding guarantees available to all Donor-funded teams, are sufficient to insure funding for the 1997-1998 season.
14 Because the Women's and Men's Track teams share coaching, and because the Coach would, if permitted by the Court, permit essentially unlimited membership, the maximum number of men will be increased by one man for each two women by which the Women's Track team exceeds its minimum. This would apply to both Cross-country and Indoor/Outdoor Track. A similar rule would apply to Men's Fencing and Swimming, which also share coaching with the matched Women's teams.
15 Men's cross-country's 1996-97 maximum was increased to 22 based upon increased women's participation.