Everyone agrees that Title ix was supposed to end the reign of athletic-directors who thought women had no place on their fields or in their arenas. But a Title IX class-action suit filed in 1992, Cohen v. Brown University, raised a different issue: Does a fair-minded university where half the students are women have an obligation to try to fill its varsity rosters with equal numbers of men and women even if far more men than women want to participate?
Brown was at the forefront of the women's athletic movement when it established 14 women's varsity teams shortly after it became coed in 1971. Women now constitute 53% of the Brown student body, but Brown doesn't want to count heads and set aside 53% of its varsity positions for women because it believes that equal opportunity can be afforded through a broad array of teams that reflect the relative interests and abilities of both sexes.
In 1991, when Brown needed to make university-wide budget cuts, it changed the source of funding for two men's teams and two women's teams (37 varsity spots for men, 23 for women) so that neither sex would receive preferential treatment. But Amy Cohen, a gymnast, and the other plaintiffs said Title IX means ladies first: Schools must fund all viable women's sports or continually expand opportunities for women until gender parity is achieved on the varsity level. The case isn't over yet, but so far the courts have sided with the plaintiffs.
The federal trial and appeals courts ruled that Brown was not in compliance with the cut-and-dried formula the courts adopted for measuring equality under Title IX: A school must structure teams so that the percentage of male and female varsity athletes mirrors (or is moving toward mirroring) the gender ratio of the student body, or it must fund every viable varsity sport that its female students want to play. The appellate court told Brown to find the necessary sources for all sports women want to play, including fencing, skiing and water polo, or eliminate as many as 213 varsity slots for men. Last week the Supreme Court chose not to review this issue yet.
Is that a victory for women, for equal opportunity? I don't think so. Shortly after I began representing Brown in this case, a radio commentator asked me how I would feel, as a woman, if Brown won and set back the movement for "gender equity." In the eyes of the commentator, also a woman, Cohen v. Brown was subtitled Women v. Men, and I was giving aid and comfort to the enemy. I am the mother of a 12-year-old daughter who loves sports, but I also have a 14-year-old son. In my eyes, Brown's approach captures the essence of gender equity: The school has welcomed women with open arms, and it has relied upon the good faith and common sense of its faculty and administrators—not mathematical formulas—to offer programs that nurture the talents and interests of our sons and daughters.
Title IX should not be read to prohibit a varsity program that is 60% male at a university where half the students are women for the same reason that we do not prohibit a collegiate dance program that is 90% female or an engineering program that is 70% male. Who would advocate a rule requiring colleges that receive applications from 100 qualified dancers—75 women, 25 men—to set aside 25 spaces for men and 25 spaces for women to ensure gender balance in a program with room for 50 dancers? Is it fair to structure that dance program so that it affords qualified men a far greater chance of participating and guarantees that many more qualified women will be excluded? That's not equal opportunity, that's preferential treatment—which Title IX expressly says is not required.
So now we get to the heart of Brown's position in Cohen v. Brown: Are there substantially more men than women who have the desire and ability to compete on the varsity level? Because if there are, accomplished male athletes should not have to duke it out among themselves to get the slots that are left after all the women have been accommodated. The court didn't require that question to be answered. It said we should just presume that "women, given the opportunity, will naturally participate in athletics in numbers equal to men." That may be true someday, but is it true now? How do we square that presumption with the fact that the men in Brown's intramural program—which has no limits on participation—outnumber the women by 8 to 1, or with evidence that approximately 60% of students around the country who want to play varsity sports are men? And why do we think that it is so important to ensure that half the athletes are women when we don't seem to care that far less than half the dancers are men?
My bottom line is this: Women don't have to have 50% of the varsity positions to succeed as athletes. They need equal opportunity, and you don't get that from a numerical formula. It comes from equality-minded athletic directors who try their best to respond to the interests and abilities of all the students, and it comes from universities like Brown that display the courage to defend their principles and autonomy, even at the risk of being accused of defending men in the gender-equity battle. And someday equal opportunity will come from judges who will recognize that Congress wanted athletic directors to be guided by the rules of fair play.