Four years ago, Brown University gymnast Amy Cohen refused to go quietly. When her school, faced with financial pressures, eliminated four varsity sports--women's gymnastics and volleyball and men's water polo and golf--Cohen and other female athletes sued Brown for allegedly violating Title IX, a 1972 federal law that bars discrimination on the basis of sex.
Amid a flurry of lawsuits on behalf of women's sports, Cohen vs. Brown has emerged as the most important test of the law that will shape college athletics into the next century. In the three years since the plaintiffs won a U.S. District Court victory that validated the Office of Civil Rights' (OCR) three-pronged test for compliance--including the controversial "proportionality" concept--colleges large and small have reluctantly begun a shift of resources from men's to women's programs. (Proportionality means that schools must allocate resources and opportunities for sports on the basis of the male-female enrollment.) "The Brown decision was like a 2-by-4 to the head of all those people who had refused to comply with the law," said Lynette Labinger, a Providence lawyer who represented Cohen, with the backing of the Washington-based Trial Lawyers for Public Justice.
Now, forces on both sides of the issue are nervously awaiting an imminent ruling by the U.S. Court of Appeals in Boston that could either affirm or overturn Judge Raymond J. Pettine's decision. Gender-equity advocates fear that a defeat would result in a rollback of the gains they have achieved. And many university administrators worry that an affirmation of the lower-court decision could mean further cuts in football programs even as pressure builds to generate revenue to pay for the costs of implementing gender equity. They insist that the current interpretation of the law discriminates against male athletes and fails to recognize that for many schools, big-time football is a money-making business quite different from, say, men's lacrosse.
"The people in Washington who are trying to dictate the way college athletics should be run don't know anything about college athletics," says Charles M. Neinas, executive director of the College Football Assn. (CFA). But James J. Whalen, president of Ithaca College, who chaired a National Collegiate Athletic Assn. gender-equity task force, rejects the "football is different" argument. "Some people would like to believe that gender equity is a feminist plot to destroy big-time football," says Whalen.
Not really. But many college administrators believe the OCR guidelines contradict the intent of Title IX by encouraging reverse discrimination. To be in compliance, a school must satisfy at least one of three tests: the ratio of female to male athletes and female and male students must be "substantially equivalent"; continued expansion of women's athletic opportunities must be demonstrated; and the athletic interests of women must be "fully and effectively accommodated."
QUOTAS? "You can have a high-achieving women's program and still flunk that test," says University of Arkansas Athletic Director Frank Broyles. Judge Pettine determined that Brown did not meet the requirements, even though the school sponsors 17 women's sports, far more than the national average. Brown contended that it should not be penalized because female students are not interested in athletics in the same numbers as their male counterparts. "If [Brown's athletic program] violates the law by not matching the male-female population, then why isn't it against the law that the drama department is 80% female?" asks Brown spokesman Mark Nickel. Adds Brown attorney Walter Connoly: "This proportionality argument is the worst form of quota system."
In recent years, athletic officials, caught between the conflicting mandates of balancing the books and complying with the law, often have been forced to cut men's teams. The 1992 U. S. Supreme Court decision in Franklin vs. Gwinnett County, a preferential hiring case that established the precedent of monetary compensation for victims of Title IX violations, was a wake-up call. "Up to that point, the law basically encouraged noncompliance," said Atlanta attorney Nancy Ryan, a specialist in Title IX cases.
Not any more. In August, Joe Glenn, football coach at University of Northern Colorado, was forced to cut 11 nonscholarship players from his squad in order to satisfy a "participation quota." "These were kids paying their own way," Glenn says. "It was the hardest, most irrational thing I've ever had to do in coaching."
Participation by female athletes is up 23% since 1989, but women's sports still lag behind in funding. Few programs, says the Women's Sports Foundation, could survive a federal investigation. Washington State University is a big exception. After losing a Title IX lawsuit in the mid-'80s, it revamped its athletic department and now is considered a gender-equity model. The Cougars give 46% of their scholarships to female athletes, reflecting the university population. "The key to our strategy was overturning the exemption for football," says Marcia Saneholtz, senior associate athletic director. "You can't treat football differently."
Opponents of the OCR guidelines argue that football must be treated differently because it requires so many athletes, thereby rendering proportional compliance almost impossible without cutting large numbers of men's nonrevenue sports. More important, football brings in the bucks. The College Football Assn. cites a 1995 survey showing that its membership, which includes most major football schools, spent an average of $101,000 more on scholarships for women than men--if football is removed from the equation. At the 55 schools that responded to the CFA survey, football generated a total of $570 million, compared with $5 million for women's sports. Says former Baylor head coach Grant Teaff, the executive director of the American Football Coaches Assn.: "They've cut us to the bone to save money and yet they expect us to keep bringing in more money."
Financial concerns have played a large role in the recent realignment of major football powers, especially the formation of the Big 12 Conference--a group of schools, including the former Big Eight Conference and the old Southwest Conference, that began play this season. Although the league's football coaches opposed the establishment of a postseason championship game, the university presidents overruled them because they said they needed the estimated $7.2 million per year payoff to support gender equity.
While most athletic officials do not want to reverse advances in the treatment of women, they know the pressures to generate revenue will only increase if the Brown decision is affirmed. Their hope is that the proportionality guideline--already disregarded in a lower-court ruling in Louisiana--will be thrown out, leading to what they say would be a more real-world approach to college athletics. Whatever way the decision comes down, though, it seems likely that the losing side will go for the long bomb--the Supreme Court.