WASHINGTON - The Supreme Court yesterday shut off the last avenue of appeal for American universities and colleges that provide more sports programs for men than women based on their belief that female students are less interested in athletics.
Over the protests of 60 colleges and universities, the high court rejected an appeal by Brown University that sought to have a controversial lower court decision requiring strict sex equality in athletic programs overturned. The Supreme Court's denial of the case effectively means that schools nationwide must ensure that the total number of varsity positions for men and women match their overall percentage in the student body.
Yesterday's action is likely to accelerate the trend among schools to scale back men's athletics and pump up women's sports to meet the gender equality standard required by federal law. Although the law at issue, Title IX, has existed for 25 years, the lower court ruling was particularly controversial because it defined a strict standard of parity for young women athletes - potentially at the expense of male athletes.
At Brown, for example, women composed 51 percent of the student body, yet they represented only 38 percent of campus athletes. That 13 percent differential, according to the 1st U.S. Circuit Court of Appeals, amounted to illegal discrimination.
To rectify the imbalance, universities and colleges that receive federal funds must either cut back or eliminate some men's sports, or add women's teams. The effect of the high court action is not that schools must offer the same sports to both sexes - just because men have a football team doesn't mean women must have one too. Rather, schools overall must provide athletic participation opportunities in numbers that are proportionate to the enrollment of men and women.
The appeals court standard - which was drawn from federal regulations and re-endorsed recently by the U.S. Department of Education - already has forced some schools to cancel football and other men's varsity sports, either to shift financial resources to women or to make equal the ratios of male and female athletes. Other lower courts have followed the First Circuit's lead.
The one-sentence order by the Supreme Court keeping that standard in place set no national legal precedent. But by refusing to intervene in the closely watched case, the high court nonetheless reignited the national debate yesterday over the breadth of Title IX.
"It means you have to be looking for any and every sport that women might be interested in playing and then fund it,'' said lawyer Maureen Mahoney, who represented Brown in the high court appeal. "And whenever you have compelled affirmative action, you have a risk of a backlash. What you really want is men and women athletes sharing the joy of sports together.''
The First Circuit, however, emphasized that it did not view the case as an affirmative action dispute, but simply as pure discrimination against women: "(A)t the heart of this litigation is the question of whether Title IX permits Brown to deny its female students equal opportunity to participate in sports. ... We view Brown's argument that women are less interested than men in participating in intercollegiate athletics ... with great suspicion.''
Still, the First Circuit interpretation of the Title IX mandate raises new questions of fairness. Either because of tradition, natural inclination or other factors, male students tend to go out for sports in far greater numbers than women. And since money is limited, schools often have responded to the appeals court ruling by cutting back resources for those who have the greatest expectations of joining athletics programs: men.
Brown's lawyers claim that the approach being forced on schools amounts to unconstitutional preferences and quotas for women. But proponents of women's sports argue that females may not be as interested in athletics now, but if given the chance, their enthusiasm will grow. In their ruling, the appeals court upheld that view.
"Interest and ability rarely develop in a vaccuum; they evolve as a function of opportunity and experience.''
The Brown lawsuit began when the university, in an effort to cut costs, downgraded the status of the women's gymnastics and volleyball teams from "university-funded'' varsity to "donor-funded,'' meaning they lost university funding, support and privileges. At the same time Brown demoted two men's teams, water polo and golf. (The records shows that Brown saved $62,028 by downgrading the women's teams and $15,795 by demoting the men's teams.)
Members of the women's gymnastics and volleyball teams sued under Title IX, alleging that because men at Brown already enjoyed the benefits of a larger share of the univeristy resources, this was not an even-handed demotion of two men's and two women's teams.
Brown contended that it was meeting Title IX because it was accommodating the "relative interests and abilities'' of its male and female students. But a district court ruled for the female athletes and ordered reinstated funding for gymnastics and volleyball. Last year, the appeals court upheld the finding of discrimination, saying federal law requires a school to have "gender parity between its student body and its athletic lineup'' unless it can show progress towards that goal or full accommodation for female athletes.
Yesterday, when the Supreme Court declined to take the case, it was the end of the line, unless some school in the future succeeds in getting a challenge to the federal regulation before the high court.
Yesterday's action, said University of Wisconsin associate athletic director Cheryl Marra, tells administrators that "there are no more excuses'' to reaching equality in sports programs. But Marra added, it is a potentially expensive goal. "To add any women's sport, it cost a minimum of between $200,000 to $300,000. That's a lot of money.''
Notre Dame Athletic Director Mike Wadsworth, whose school supported Brown's appeal, said many schools are worried about whether they will have to cut men's teams.
"You have to be concerned about that. What will be the net effect?'' Wadsworth said. Schools with football teams generally face an obstacle because that sport involves a large number of athletes and scholarships. Division I-A schools are allowed 85 football scholarships. Only crew comes close to that in women's sports, reaching up to 60 participants.