Amicus Curiae Brief — Colorado State Board of Agriculture, in Its Capacity as the Governing Board of the Colorado State University v. Roberts

No. 93-559

— | “In THE

SS oS Suprene Court of the United States

[2% OcToBER TERM, 1993

~~ > © a

ae ’

COLORADO STATE BOARD OF AGRICULTURE.

In its capacity as the governing board

of the Colorado State Universit

¥.

JENNIFER RoBerts, JULIF OSBorNe, JANET BreuMBEeLow,

LAURA BIELAK, SARA Stour, Amy Rrecouprrer, Je:

NIFER JACOBS, MALia Kurxzit, Stacie STAFFORD,

HEATHER NAKASONF, KIM JOHNSON, AIM! RIcI

AINSWORTH, and LIsA MiIzFr, in their indivi

capacities,

On Petition fora Writ of Certiorarito the

United States Court of Appeals

for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURTAE

AND

BRIEF OF BROWN UNIVERSITY AND

COLGATE UNIVERSITY AS AMICI CURIAE

IN SUPPORT OF PETITIONER

PHILIP BURLIN«

Counsel of Record for

Amici Curiae

Of Counsel: STEPHEN B, DEUTSCH

BEVERLY IE. LEDBETTER STEPHEN D, SOWLE

BROWN UNIVERSITY FoLey, HoAaGc & ELIOT

Office of the General Counsel One Post Office Square

Providence, RI 02912-3122 Boston, MA 02109

(401) 8638-1104 (617) 482-1390

GEORGE A. DAVIDSON

HUGHES HUBBARD & REED

One Battery Park Plaza

New York, NY 10004

(212) 837-6585

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OcTOBER TERM, 1993

No. 93-559

COLORADO STATE BOARD OF AGRICULTURE,

in its capacity as the governing board

of the Colorado State University,

~~ Petitioner,

JENNIFER ROBERTS, JULIE OSBORNE, JANET BRUMBELOW,

LAURA BIELAK, SARA Stout, AMY RECOUPER, JEN-

NIFER JACOBS, MALIA KUENZLI, STACIE STAFFORD,

HEATHER NAKASONE, KIM JOHNSON, AIMEE RICE

AINSWORTH, and LISA Mize, in their individual

capacities, Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

MOTION OF BROWN UNIVERSITY AND

COLGATE UNIVERSITY FOR LEAVE

TO FILE BRIEF AMICI CURIAE

IN SUPPORT OF PETITIONER

Pursuant to Rule 37 of the Rules of the Supreme Court

of the United States, Brown University (“Brown”) and

Colgate University (“Colgate”) hereby move for leave

to file the attached brief amici curiae in support of

the petition for writ of certiorari. Petitioner Colorado

State Board of Agriculture has consented to the filing of

the brief; its written consent is filed concurrently herewith.

Respondents Jennifer Roberts, et al., have denied consent.

1. Brown and Colgate are institutions of higher educa-

tion that are directly affected by the application of Title

IX of the Education Amendments of 1972, 20 U.S.C.

S$ 1681-1688, to their intercollegiate athletic programs.

Brown is the defendant in another case that raises issues

virtually identical to those at issue here. See Cohen v.

Brown Univ., 991 F.2d 888 (1st Cir. 1993) (affirming

issuance of preliminary injunction). Colgate is the de-

fendant in a case that likewise raises similar issues under

Title IX. (An earlier suit raising the same allegations

against Colgate was dismissed as moot. See Cook v.

Colgate Univ., 992 F.2d 17 (2d Cir. 1993).) The Tenth

Circuit substantially relied upon Cohen in reaching the

decision from which the petition for certiorari in the pres-

ent case arises. The decision in the present case will have

a direct and substantial effect on the ability of Brown and

Colgate to administer their athletic programs in a fair and

efficient manner.

2. Pursuant to Rule 37.1 of the Rules of this Court,

Brown and Colgate move to file their brief amici curiae to

bring “relevant matter[s] to the attention of the Court that

[have] not already been brought to its attention by -the

parties” that strongly support exercise of the Court’s juris-

diction. The brief highlights the following issues, in addi-

tion to the matters addressed in detail in the petition for

writ of certiorari.

3. First, the brief highlights the stark contradiction

between the-Tenth Circuits—holding and the express pro-

visions of Title IX. The Tenth Circuit ruled that no edu-

cational institution may cut any women’s athletic program

so Jong as the percentage of women among those at the

institution who participate in athletics is less than the

percentage of women in the institution’s overall enroll-

ment. This directly contravenes 20 U.S.C. § 1681(b),

which provides that educational institutions are not re-

quired “to grant preferential or disparate treatment to

the members of one sex” based only on this type of purely

Statistical disparity.

a ee |

4. Second, the brief explains the direct conflict be-

tween this Court’s precedents interpreting Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -17,

which contains virtually the same language disfavoring

preferential treatment found in Title IX, and the result

reached by the Tenth Circuit herein in interpreting Title

IX.

5. Finally, the brief argues that the Court should grant

certiorari to interpret Title [IX to avoid the result reached

by the Tenth Circuit, thereby avoiding serious equal pro-

tection concerns raised by the lower court’s holding.

In order to bring these matters to the attention of the

Court, Brown and Colgate respectfully move for leave to

file the accompanying brief in support of the petition for

writ of certiorari.

Respectfully submitted,

PHILIP BURLING

Counsel of Record for

Amici Curiae

Of Counsel: STEPHEN B. DEUTSCH

3EVERLY E. LEDBETTER STEPHEN D. SOWLE

BROWN UNIVERSITY WoLeY, HOAG & ELIOT

Office of the General Counsel One Post Office Square

Providence, RI 02912-3122 Boston, MA 02109

(401) 863-1104 (617) 482-1390

GEORGE A. DAVIDSON

HUGHES HUBBARD & REED

One Battery Park Plaza

New York, NY 10004

(212) 837-6585

November 3, 1993

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .0o...o..o..cccccccccccccecceccceccocceccees. iii

INTEREST OF THE AMICI CURIAE .................00...... 1

RAGIN, srsachidicita ee es 2

I. THE HOLDING OF THE COURT BELOW,

THAT LIABILITY MAY BE BASED SOLELY

ON EVIDENCE OF DIFFERING MALE AND

FEMALE ATHLETIC PARTICIPATION

RATES, WITH NO SHOWING OF DISCRIMI-

NATION, DIRECTLY CONTRADICTS THE

CLEAR LANGUAGE OF TITLE IX AND

RAISES ISSUES OF PROFOUND IMPOR-

TANCE FOR VIRTUALLY EVERY EDUCA-

SOO AL, TIBET TUT — ccceccccceverevevsesceneessaemene 5

A. Title IX Does Not Require Educational In-

stitutions to Prefer One Sex Over the Other

Based Only on Statistical Evidence of Dif-

ferences in Athletic Participation Rates........ 5

B. The Three-Part “Policy Interpretation” Test

Used by the Court Below, When Applied in

the Context of Program Cutbacks, Violates

Title IX and Its Implementing Regulations.... 6

1. The Three-Part Test Was Drafted

«When Athletic Participation Opportuni-

ties Were Expanding for Both Sexes........ 8

2. When Applied in the Context of Program

Cutbacks, The Three-Part Test Results

in Liability Based Solely on Statistical

Evidence of Differences in Athletic Par-

ticipation Rates and Thus Violates Title

Ra <snbseiackcacunmeiamidnseeiuadees actin aaa mae 8

3. As Applied by the Court Below, the

Three-Part Test Precludes Educational

Institutions From Distributing Athletic

Opportunities on the Basis of the Inter-

ests and Abilities of Both Sexes ................ 10

(i)

il

TABLE OF CONTENTS—Continued

Page

Il. THE HOLDING OF THE COURT BELOW

CONFLICTS WITH DECISIONS OF THIS

COURT INTERPRETING THE SECTION OF

TITLE VIJ THAT MIRRORS TITLE IX’S

PROVISION DISFAVORING PREFEREN-

REGRAS EUMGRICTEENET weneensscnecenieimmmibbdenadbiesani 12

Ill. TITLE IX MUST BE INTERPRETED TO

AVOID THE SERIOUS EQUAL PROTEC-

TION PROBLEMS RAISED BY THE LOWER

COURT'S DECISION ........... iaidianeinieemeanasiabicnibite 17

GRP UTAPRIGINILITY ssscsiitntviincunaniatediienicubneionniiadaaaiaiadeies nase 20

ili

TABLE OF AUTHORITIES

CASES Page

City of Richmond v. J.A. Croson Co., 488 U.S. 469

CT ceicsncenesues ......-..48, 19, 20

Cohen v. Brown Univ. 991, F. 2d 888 (1st Cir.

PUT scbiiscecadechicstekidataacaahtaenecasitndea nee cena 1, 3, 13

Cook v. Colgate Univ., 992 F.2d 17 (2d Cir.

ee Ace NR NT NE File h A BS ctag FS oon 1

Edward J. DeBartolo Corp. 2 , Florida Gulf Coast

Building & Constr. Trades eonk 485 U.S. 568

REPU Getncchadatastansiieeech etsicak i Wee Re eee nen 17, 20

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) aon WIN 13

Johnson v. Transportation Agency, 480. US . 616

RIT P ccntusantacsancntiida tacit kein 16

Local 28, Sheet Metal W orkera’ Internat’l Ass’n ¥.

Equal Employment Opportunity Comm’n, 478

oF A Re a eT ae 15, 16

Metro Broadcasting, Inc. v. Federal Communica-

tions Comm’n, 497 U.S. 547 (1990) rion aear ak 19

Mississippi University for Women v. Hogan, 458

Ns TI col cane re 17

National Labor Relations Bd. v . Catholic Bishop,

440 U.S. 490 (1979) ................. ladmiiodedutianinnieniaiaa 20

Price Waterhouse v. Hopkins, 490 U.S. 228

sansa ” 15

Regents of University of Cali fornia v. Bakke, 488

Use BSD CIOTB) ....<<ccceneee. 20

Roberts v. Colorado State Rd. of Agric ulture, 998

F.2d 824 (10th Cir. 1998) .............. ~passim

Roberts v. Colorado State Univ., 814 F. Supp.

1507 (D. Colo. 1993) .. pede) oe 2,16

Wards Cove Packing Co. v. Atonio, 490 U.S. 642

(1989) ESE LRN I RP Fa an tae 3% oe

Watson v. Fort Worth Bank & Trust, 487 U.S.

A ke Ra ieciactoe nta O Dn aa NU Naa eas 14,15

West Virginia University Hospitals, Inc. v. Casey,

er rei ee I aca sedan ietnesni 12

Wygant v. Jackson Board of Education, 476 U S.

Gis elacdstdinesaneaachaddadialeetaaatenitadia teenie aa 17, 18, 19

267 (1986)

iv

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTION, STATUTES AND REGULATIONS

U.S. Const. amend. XIV ....... RE AS Bn OREN A 18

sc cetiaetniieentensccisiainss camninmieseie 1

20 U.S.C. $ 1661 (a}-...................... ea we PE SEEK ANR 3, 5, 10, 12

20 U.S.C. § 1681 (b) ... ees Oe

7 pte fe, saaieaiaael pide sn Se 12

ee tn ee Oe GOW, cncccsevecescenannntnevccnneeseersnccscuseniens 4

42 U.S.C. § 20000-2 (}) ..........-................ 12, 13, 14, 15, 16, 17

OO a i 14

a i a i caieuensbieebeammmneiiob 7,11

OTHER AUTHORITIES

110 Comm. Rec. TZIS (1OGCE) ........cccccccccceccccoccccccccececeseee 14, 15

Title IX of the Education Amendments of 1972;

A Policy Interpretation; Title IX and Intercol-

legiate Athletics, 44 Fed. Reg. 71,413 (1979).... 3, 7, 8,

9,11, 12

BRIEF OF BROWN UNIVERSITY AND

COLGATE UNIVERSITY AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

Brown University (“Brown”) and Colgate University

(“Colgate”) are institutions of higher education that are

directly affected by the application of Title IX of the Edu-

cation Amendments of 1972, 20 U.S.C. §§ 1681-1688, to

their intercollegiate athletics programs.

Brown is the defendant in a case that is very nearly

identical to this one. In the litigation against Brown,

members of two women’s teams that the university pro-

posed eliminating (along with two men’s teams) sought

and obtained a preliminary injunction against the elimina-

tion of their teams. On interlocutory appeal, the First

Circuit issued an opinion affirming the issuance of the

preliminary injunction. Cohen v. Brown Univ., 991 F.2d

888 (Ist Cir. 1993). The Tenth Circuit substantially

relied upon Cohen in reaching the decision from which

the petition for certiorari in the present case arises. While

the opinion of the court below repeats the principal error

of the First Circuit opinion, it also conflicts in important

respects with that opinion. Resolution of these important

issues is vital to Brown’s ability to manage the necessary

reduction of its athletic program and more broadly to

instruct higher education, nationally, in the appropriate

manner of compliance with Title IX in cases of program

reductions.

Colgate is the defendant in a case, arising out of the

school’s failure to elevate the women’s ice hockey club

team to varsity status, that also raises issues similar to

the issues in this case. (An earlier suit raising the same

allegations against Colgate was dismissed as moot. Sce

Cook v. Colgate Univ., 992 F.2d 17 (2d Cir. 1993).)

Resolution of the issues raised in the Tenth Circuit case

is important to Colgate’s ability to manage its athletic

programs without running afoul of Title IX.

All colleges and universities, including Brown and Col-

gate, are faced with external financial exigencies. Some

2

have been required to reduce the size of their athletic pro-

grams; others may be required to do so in the future. At

the same time, these colleges and universities must com-

ply with the mandates of Title IX. Brown and Colgate

therefore wish to bring to the Court's attention certain im-

portant statutory and constitutional issues raised by the

opinion of the court below, as well as the practical prob-

lems that would be imposed on institutions of higher

learning by the lower court’s decision as these institutions

confront the complex and difficult taks of deciding how

and where to reduce athletic programs, and thus deny to

some young women and men the opportunity to play par-

ticular sports at the intercollegiate level.

ARGUMENT

Faced with the need to reduce its expenditures for inter-

collegiate athletics, Colorado State University (“CSU”)

in 1992 chose to eliminate two varsity teams, a men’s

baseball team and a women’s softball team. The decision

eliminated 55 varsity positions for men, and only 18 for

women. Roberts v. Colorado State Univ., 814 F. Supp.

1507, 1514 (D. Colo. 1993); Pet. App. at A-11.* More-

over, the university devoted some of the savings realized

by the cuts to increasing scholarships in other women’s

sports; it put none of the money towards men’s sports.

The net result of these efforts was to increase the pro-

portion of athletic opportunities for women at CSU from

35.2 percent of the total opportunities to 37.7 percent. /d.

at 1512; Pet. App. at A-7.° After cutting the baseball

and softball programs, CSU continued to sponsor more

women’s sports (8) than men’s sports (7). CSU, more-

over, had been found to be in compliance with Title IX

in 1989 by the Department of Education’s Office for Civil

1 Citations to “Pet. App.” are to the page numbers in the appen-

dix included with the petition for certiorari.

2 The university’s actions also had the result of decreasing, from

12.7 percent in the 1991-92 academic year to only 10.5 percent the

following year, the difference between the women’s intercollegiate

athletic participation rate and the women’s enrollment rate at CSU.

Roberts, 814 F. Supp. at 1512; Pet. App. at A-7.

3

Rights (the “OCR”), the agency charged with administer-

ing Title [X.*

Despite these facts, the court below held that CSU’s

actions in eliminating the baseball and softball teams vic-

lated Title IX. Title IX itself prohibits only “discrimin-

ation,” 20 U.S.C. § 1681(a), and indeed it contains lan-

guage expressly providing that it shall not be interpreted

“to require any educational institution to grant pref-

erential . . . treatment to the members of one sex on

account of an imbalance which may exist with respect to

the total number or percentage of persons of that sex

participating” in the federally-supported program or activ-

ity in question. 20 U.S.C. § 1681(b).

In the face of this explicit statutory language, the

the Tenth Circuit, following the lead of the First Circuit

in Cohen v. Brown Univ., 991 F.2d 888 (1st Cir.

1993),* nonetheless found CSU in violation of Title IX

by applying a 1979 “Policy Interpretation” of the statute

issued by the OCR. See Title 1X of the Education

Amendments of 1972; A Policy Interpretation; Title 1X

and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,418

(1979) (the Policy Interpretation). The Policy Inter-

pretation was drafted, and initially applied, at a time

when universities were expanding athletic opportunities.

The Tenth Circuit, however, rigidly applied the Policy

Interpretation in the very different context of declining

funding, and held that under it CSU must cut only men’s

athletic programs because, in comparison with the school’s

undergraduate enrollment, men’s participation in CSU’s

intercollegiate athletic programs exceeded women’s par-

ticipation. -

3 See March 8, 1989 letter from Gilbert D. Roman, Regional

Director of the OCR, to Dr. Philip E. Austin, President of CSU;

Pet. App. at D-1 to D-3 (announcing that OCR was terminating its

monitoring of CSU’s athletic programs because CSU had “achieved

compliance with Title IX .. . and its implementing regulation, 34

CFR Part 106’).

* See Roberts v. Colorado State Bd. of Agriculture, 998 F.2d 824,

831 (10th Cir. 1993); Pet. App. at C-15 to C-16 (citing Cohen).

4

Such a drastic holding might be justified if it were

premised on a finding that the disparate athletic partici-

pation ratios at CSU themselves were the result of dis-

crimination by CSU against female athletes. The Tenth

Circuit, however, did not base its decision on any such

finding. Rather, it rested its holding exclusively on the

raw disparity in CSU’s athletic participation ratios, to-

gether with the fact that, as a result of the 1992 cut-

backs, there were some women athletes at CSU—the

plaintiffs, former members of the softball team—whose

“interests and abilities” were not fully accommodated.

Given the severe economic constraints confronting

higher education today, the Tenth Circuit’s holding af-

fects every institution of higher learning that receives fed-

eral financial assistance. Since male athletic participation

ratios exceed female ratios at virtually all such institu-

tions, the Tenth Circuit’s holding, unless reversed, will

require that at all of these schools, whenever athletic pro-

gram cutbacks are necessary, the cuts come solely from

men’s athletic programs. This extreme result violates the

clear language of Title IX. If left undisturbed, it would

make impossible the fair and efficient administration of

athletic programs at virtually all educational institutions

throughout the country. This Court therefore should

grant certiorari in order to reverse the decision.

Moreover, the position taken by the Tenth Circuit con-

travenes holdings by this Court interpreting Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -17.

That statute prohibits the imposition of liability solely on

the basis of evidence of statistical disparities. Title IX

contains language that is virtually identical, which the

Tenth Circuit completely disregarded in reaching its re-

sult. This Court therefore should grant certiorari in order

to apply its established interpretation of Title VII to the

virtually identical language of Title IX.

Finally, the Court should grant certiorari in order to

interpret Title IX to avoid the serious equal protection

concerns raised by the lower court’s holding.

5

I. THE HOLDING OF THE COURT BELOW, THAT

LIABILITY MAY BE BASED SOLELY ON EVI-

DENCE OF DIFFERING MALE AND FEMALE

ATHLETIC PARTICIPATION RATES, WITH NO

SHOWING OF DISCRIMINATION, DIRECTLY

CONTRADICTS THE CLEAR LANGUAGE OF

TITLE IX AND RAISES ISSUES OF PROFOUND

IMPORTANCE FOR VIRTUALLY EVERY EDUCA-

TIONAL INSTITUTION.

Despite the fact that CSU’s 1992 cutbacks improved

women’s participation opportunities in comparison with

those-of their male counterparts, the Tenth Circuit found

that CSU violated Title IX by failing to place the entire

burden of absorbing the 1992 cutbacks on men. This

holding, based solely on the fact that the proportion of

women among CSU athletes at the time the cuts were

made was smaller than the proportion of women in the

student body as a whole, contravenes the clear language

of Title IX and misconstrues the agency interpretations

of Title IX on which the court purported to rely.

A. Title IX Does Not Require Educational Institutions

to Prefer One Sex Over the Other Based Only on

Statistical Evidence of Differences in Athletic Par-

ticipation Rates.

Title IX prohibits educational institutions from dis-

criminating on the basis of sex. 20 U.S.C. § 1681(a).”

By its express terms, however, Title LX does not require

schools to prefer one sex over the other based merely on

statistical evidence that one sex participates less than the

other in a particular program or activity:

Nothing contained in subsection (a) of this sec-

tion shall be interpreted to require any educational

institution to grant preferential or disparate treatment

to the members of one sex on account of an imbal-

ance which may exist with respect to the total number

520 U.S.C. § 1681(a) provides that “[n]o person in the United

States shall, on the basis of sex, be excluded from participation in,

be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance...

”

.

6

Or percentage of persons of that sex participating

in or receiving the benefits of any federally supported

program or activity, in comparison with the total

number or percentage of persons of that sex in any

community, state, section, or other area... .

20 U.S.C. § 1681(b).

The Tenth Circuit recognized that this language means

that “a Title IX violation may not be predicated solely

on a disparity between the gender composition of an

institution’s athletic program and the gender composition

of its undergraduate enrollment[.]” 998 F.2d at 831;

Pet. App. at C-14. There is good reason for this rule.

Creation or elimination of varsity positions has no im-

pact on students generally; it affects only athletes. There

was no proof below that the percentages of women and

men at CSU who were interested in athletics were identi-

cal. Indeed, the evidence was to the contrary. For ex-

ample, in Colorado high schools (from which the vast

preponderance of the CSU student body is drawn), fe-

male athletic participation is lower than male participa-

tion. As explained below, however, the effect of the

Tenth Circuit’s decision is to predicate liability on pre-

cisely the type of disparate impact evidence prohibited by

Title IX, with no requirement whatever that the disparity

have resulted from discrimination by the _ institution

involved.

B. The Three-Part “Policy Interpretation” Test Used

by the Court Below, When Applied In the Context

of Program Cutbacks, Violates Title IX and Its

Implementing Regulations.

The formal regulations under Title IX require recipi-

ents of federal funds to “provide equal athletic opportu-

nity for members of both sexes” and list ten non-exclusive

factors for determining whether an institution has met

this requirement.

One of these ten factors requires consideration of

“[w]hether the selection of sports and levels of competi-

tion effectively accommodate the interests and abilities

7

of members of both sexes[.]” 34 C.F.R. § 106.41(c)(1).°

The Tenth Circuit’s error came when it tried to determine

whether CSU’s actions had “effectively accommodated”

the interests and abilities of both male and female ath-

letes. To do so, the court relied exclusively on a three-

part test contained in the OCR’s 1979 Policy Interpreta-

tion, which provides that an institution “effectively ac-

commodates” interests and abilities if any of the follow-

ing requirements are satisfied:

(1) “participation opportunities for male and fe-

male students are provided in numbers substantially

proportionate to their respective enrollments;” or

(2) if participation opportunities are not substan-

tially proportionate, “the institution can show a his-

tory and continuing practice of program expansion

which is demonstrably responsive to the developing

interest and abilities of the [underrepresented] sex;”

or

(3) if participation opportunities are not substan-

tially proportionate and the institution cannot show

a history or continuing practice of program expan-

sion, “it can be demonstrated that the interests and

abilities of the [underrepresented] sex have been fully

and effectively accommodated by the present

program.”

44 Fed. Reg. at 71,418.

The Tenth Circuit recognized that the “substantial pro-

portionality” standard contained in the first prong of this

test was designed to be nothing more than a “safe harbor”

for educational institutions and that schools would still

comply with Title IX if they satisfied the second prong

of the test (by continuing to expand opportunities for

women), or the third prong (by fully accommodating the

interests and abilities of women). 998 F.2d at 829; Pet.

App. at C-9. By applying the Policy Interpretation’s

®The Tenth Circuit rejected CSU’s argument that a Title IX

violation must be premised on an evaluation of the instituiton’s

overall compliance with all of the listed factors. 998 F.2d at 828;

Pet. App. at C-7 to C-8.

8

three-part test in the context of CSU’s 1992 program cut-

backs, however, the Tenth Circuit effectively converted

the “safe harbor” of the first prong into the exclusive

test of CSU’s liability. This was error.

1. The Three-Part Test Was Drafted When Athletic

Participation Opportunities Were Expanding for

Both Sexes.

The Policy Interpretation’s three-part test was created

when the financial and other resources available to educa-

tional institutions were increasing. The Policy Interpreta-

tion itself was based on an historical analysis by the

OCR of women’s participation opportunities in intercol-

legiate athletics. This analysis, published in 1979 as an

appendix to the Policy Interpretation itself, showed that,

although differences remained, the opportunities for both

men and women had expanded during the 1970s, with the

increase in women’s opportunities significantly outpacing

the increase in men’s opportunities. 44 Fed. Reg. at

71,419. As a result, “[t}he overall growth of women’s

intercollegiate programs [had] not been at the expense of

men’s programs.” /d.

The three-part test, adopted in this historical context,

clearly contemplates that athletic programs will con-

tinue to expand. Thus, it sets forth a path for com-

pliance based on expanding opportunities. Under it, in

an expanding universe, schools could satisfy the anti-

discrimination mandate of Title IX, without penalizing

or preferring either sex, by expanding programs under

the second prong of the three-part test.

2. When Applied In the Context of Program Cut-

backs, The Three-Part Test Results in Liability

Based Solely on Statistical Evidence of Differ-

ences in Athletic Participation Rates and Thus

Violates Title 1X.

The picture changes dramatically when the assump-

tion of an “expanding” financial universe no longer holds

true. Colleges and universities throughout the country

have experienced severe economic distress in recent years.

OO

9

CSU has not been immune from this problem. As a

result, CSU, and many other schools, have been forced

to cut expenditures in many of their programs, including

intercollegiate athletics.

When the three-part test is applied in this context, it

becomes nothing more than a prescription for liability.

Virtually no college or university in the country now

meets the first (“substantial proportionality” ) prong of

the test." The second (“expanding program”) prong is

by definition unavailable in the context of program cut-

backs. Moreover, as the Tenth Circuit interpreted the

test, the third prong can never be satisfied if any women’s

program is cut because, that court held, any cut in a

women’s program means that women’s interests are not

being “fully and effectively accommodated.”

Hence, under the Tenth Circuit’s reasoning, schools

now may comoly with Title IX only by “cutting athletic

programs such that men’s and women’s athletic Participa-

tion rates become substantially proportionate to their rep-

resentation in the undergraduate population’—in other

words, by cutting solely from men’s athletic programs

until substantial proportionality is achieved. 998 F.2d

at 830; Pet. App. at C-13. This rule construes Title IX

as a one-way “ratchet” under which schools are abso-

lutely forbidden to make cuts that affect women’s athletic

Mrograms at all. even if the overall effect of the cuts im-

proves proportionality,® and it converts Title IX into a

* As explained in the petition for certiorari, Pet. at 8 & n.11, at

297 out of 298 Division I schools, the rate of women’s participation

in intercollegiate athletics is lower than the percentage of women

in the student body, and the reason for the rate of participation

being the same as the enrollment rate at the remaining school is a

state court decision that itself may have required a violation of

Title IX.

‘As noted in the petition for certiorari, Pet. at 6, the result of

this reasoning is to hold CSU in violation of Title IX despite the

fect that women now have a greater share of athletic opportunities

than in 1989, when the OCR found CSU’s athletic program to be

in compliance with Title IX.

10

rigid requirement of statistical parity, without regard for

the subtleties and complexities of university life.

The lower court’s reasoning, converting the “safe har-

bor” of substantial proportionality into the sole test of

liability when a school is forced to cut its athletic expendi-

tures, flatly contradicts 20 U.S.C. § 1681(b) by making

universities liable solely on the basis of a statistical show-

ing of disparity in participation rates, with no finding that

the disparity results from discrimination. Nowhere in its

opinion does the court grapple with—or even explicitly

recognize—this contradiction, a fact that is all the more

puzzling given the court’s acknowledgment, noted above,

that a Title IX violation may not be predicated “solely

on a disparity between the gender composition of an insti-

tution’s athletic program and the gender composition of

its undergraduate enrollment[.]” 998 F.2d at 831; Pet.

App. at C-14.

3. As Applied by the Court Below, the Three-Part

Test Precludes Educational Institutions From

Distributing Athletic Opportunities on the Basis

of the Interests and Abilities of Both Sexes.

Title IX and its implementing regulations mandate that

educational institutions must strive to meet the interests

and abilities of both men and women, without discrimina-

tion against either sex. The Tenth Circuit’s decision

utterly ignores this mandate. Under the Tenth Circuit’s

approach, educational institutions are required to take

gender into account explicitly whenever programs must

be cut. Indeed, as noted above, the court’s rule forces

them in such circumstances to cut only men’s opportuni-

ties when substantial proportionality does not exist, even

where there is no evidence that the difference in rates of

participation is due to any discrimination by the institu-

tion. This absolute preference for women over men would

require schools to allocate athletic opportunities explicitly

“on the basis of sex,” and thus directly contravenes section

1681(a).

The Title TX regulations themselves make clear that

educational institutions are required to ensure equality of

11

opportunity, not in comparison with the number of men

and women in the school population as a whole, but

rather in comparison with the number of men and women

who possess the “interests and abilities” necessary to com-

pete in intercollegiate athletics. As 20 U.S.C. $ 1681(b)

clearly indicates, Congress, in adopting Title 1X, did not

assume that men and women have equal interests in par-

ticipating in athletics or any other particular program of-

fered by educational institutions. The regulations imple-

menting Title IX likewise make no such assumption, re-

quiring instead that schools “effectively accommodate the

interests and abilities of members of both sexes.” 34

C.F.R. § 106.41(c) (emphasis added). Thus, where

athletic oportunities are limited, this language clearly re-

quires that available opportunities be rationed between the

sexes on the basis of demonstrated interest and ability—

not on the basis of raw enrollment statistics, as the Tenth

Circuit would require.

In sum, while the “substantial proportionality” prong

of the three-part test can be a “safe harbor” by which a

school can demonstrate compliance, it cannot be required

for compliance.

The Policy Interpretation itself states that “the govern-

ing principle [in determining interests and abilities] is

that the athletic interests and abilities of male and female

students must be equally effectively accommodated.” 44

Fed. Reg. at 71,414. See also id. at 71,417 (institutions

must “accommodate effectively the interests and abilities of

students to the extent necessary to provide equal oppor-

tunity in the selection of sports and levels of competition

available to members of both sexes’) (emphasis added).

The Tenth Circuit’s approach, by requiring schools to cut

exclusively from men’s athletic programs, clearly violates

this principle. This Court should grant certiorari to cor-

rect this error.

12

Il. THE HOLDING OF THE COURT BELOW CON-

FLICTS WITH DECISIONS OF THIS COURT IN-

TERPRETING THE SECTION OF TITLE VII THAT

MIRRORS TITLE IX’S PROVISION DISFAVORING

PREFERENTIAL TREATMENT.

Title IX’s broad prohibition against sex discrimination

in educational programs receiving federal assistance, 20

U.S.C. § 1681(a), was patterned on the similarly-worded

prohibition against discrimination on the grounds of race,

color, or national origin in federally-funded programs ap-

pearing in Title VI, 42 U.S.C. § 2000d. Unlike Title VI,

however, Title IX explicitly disclaims any requirement of

“preferential or disparate treatment to the members of

one sex” based on statistical disparities that may exist be-

tween that sex’s participation in the program in question

and the “total number or percentage of persons of that sex

in any community... .” 20 U.S.C. § 1681(b). Unlike

the rest of Title IX, this provision is patterned on Title

VII. See 42 U.S.C. §$ 2000e-2(j). This Court’s interpre-

tation of the admonition against preferential treatment in

the employment context in section 2000e-2(j) of Title VII

thus provides authoritative guidance concerning the in-

terpretation of its nearly identically-worded Title IX

counterpart. See West Virginia University Hospitals, Inc.

v. Casey, 499 U.S. 83 (1991).

The reasoning and the result in the court below are

utterly incompatible with this Court’s cases construing

section 2000e-2(j), however. In woodenly applying the

three-prong test of the Policy Interpretation to a situation

in which an educational institution must reduce, rather

than expand, its athletic offerings, the Tenth Circuit ig-

nored those cases, which make clear that Title IX does

not permit the kind of preferential treatment required by

the Tenth Circuit.

As explained above, the Tenth Circuit’s application of

the Policy Interpretation to program curtailments resulted

in a finding of liability based solely on the difference

between women’s and men’s athletic participation rates

at CSU. This exclusive reliance purely on statistical dis-

EEE EEE OOO

13

proportion contradicts this Court’s interpretation of sec-

tion 2000e-2(j). In International Brotherhood of Team-

sters v. United States, 431 U.S. 324 (1977), for example,

the Court addressed a union’s argument that statistical

disproportion alone could not be the basis for liability

under Title VII, noting that section 2000e-2(j) does not

require statistical proportionality. The Court stated that

although statistical evidence was relevant, “[section

2000e-(j)] makes clear that Title VII imposes no require-

ment that a work force mirror the general population.”

Id. at 339-40 n.20. Yet the Tenth Circuit decision, by

imposing liability solely on the basis of the disproportion-

ate athletic participation rates of men and women at

CSU, does exactly that.

The Teamsters Court further noted that “evidence show-

ing that the figures for the general population might not

accurately reflect the pool of qualified job applicants would

also be relevant.” Jd. at 340. This observation, applied in

the Title IX context, underscores the necessity for an in-

quiry into the “interests and abilities” of female and male

college students, not just their raw enrollment statistics,

given that the proportion of women and men “interested”

in athletics may well differ from the percentages of women

and men enrolled in the educational institution.’

This Court also addressed this issue in Wards Cove

Packing Co. v. Atonio, 490 U.S. 642 (1989), where it

held that statistical evidence showing a high percentage of

nonwhite workers in an employer’s nonskilled jobs and a

low percentage of nonwhite workers in the same employer’s

skilled jobs was not sufficiently probative to make out a

prima facie case of employment discrimination. The

Court explained that the relevant comparison was “be-

tween the racial composition of the qualified persons in the

® This is one basis for amici’s belief that the decision in Cohen v.

Brown Univ., 991 F.2d 888 (1st Cir. 1993), also is incorrect. There,

the First Circuit rejected Brown’s argument that athletic opportu-

nities should be provided in proportion to the percentage of female

and male students expressing interest in athletics, not in proportion

to the percentage of women and men in the student body as a whole.

14

labor market and the persons holding at-issue jobs,” id.

at 650, and that the employer could not be held liable

“{i]f the absence of minorities holding such skilled posi-

tions [wa]s due to a dearth of qualified nonwhite appli-

cants (for reasons that are not petitioners’ fault).”'° 7d.

at 651."

Similarly, to the extent that the proportion of women

among the athletes at a particular school is lower than

the proportion of women in that school’s student body,

the disproportion cannot be assumed to be the school’s

“fault,” or the result of discrimination. and it may not

be used by itself to find the school liable for a Title IX

violation. Just as it cannot be assumed that all members

of a given population group are qualified for a job, it can-

not be assumed that every student in a university com-

minity has the interest to participate in intercollegiate

athletics.

Section 2000e-2(j;) also provides guidance concerning

the extent to which race- or gender-conscious remedies

may be adopted voluntarily or imposed by courts. As the

interpretive memorandum to section 2000e-2(j) explains,

“({t}here is no requirement in title VII that an employer

maintain a racial balance in his work force. On the con-

trary, any deliberate attempt to maintain a racial balance

. would involve a violation of title VII because main-

taining such a balance would require an employer to hire

or refuse to hire on the basis of race.” 110 Cong. Rec.

1° Similarly, in Watson v. Fort Worth Bank & Trust, 487 U.S.

977 (1988). a plurality of this Court noted that “[i]t is completely

unrealistic to assume that unlawful discrimination is the sole cause

of people failing to gravitate to jobs and employers in accord with

the laws of chance. It would be equally unrealistic to suppose that

employers can eliminate, or discover and explain, the myriad of

innocent causes that may lead to statistical imbalances in the com-

position of their work forces.” Jd. at 992 (citation omitted).

11 Congress amended Title VII in 1991 in response to two other

sections of the Supreme Court’s decision in Wards Cove concerning

proof of causation under Title VII and the employer’s burden once

plaintiff has established a prima facie case. See 42 U.S.C. § 2000e-

2(k). This amendment did not affect the holding discussed here.

15

7213. (1964) (emphasis supplied). Citing section

2000e-2(j), the Court in Wards Cove similarly remarked

that if pure statistical imbalance were enough to make

Out a prima facie case of employment discrimination, em-

ployers would be tempted to adopt “numerical quotas

in the workplace, a result that Congress and this Court

have rejected repeatedly in the past.” 490 U.S. at 653.

Such “inappropriate prophylactic measures,” as several

members of this Court have warned, clearly would violate

section 2000e-2(j). Watson v. Fort Worth Bank & Trust,

487 U. S. 977, 992 (1988) (plurality opinion). See also

Price Waterhouse v. Hopkins, 490 U.S. 228, 275 (1989)

(disapproving liability standards that would provide an

“incentive to preferential treatment in violation of Sec-

tion 2000e-2(j)”) (opinion of O’Connor, J.).

Yet the Tenth Circuit decision would not merely en-

courage such quotas; it would require them. Under the

Tenth Circuit’s approach, only equal participation ratios

can save a university from a finding of liability under

Title [IX when it is forced, for financial reasons, to cur-

tail the size of its athletic programs.

Although it is clear that Title VII does permit race- or

gender-conscious relief as a remedy for past discrimina-

tory practices, see Local 28, Sheet Metal Workers’ In-

ternatl Ass'n v. Equal Employment Opportunity Comm'n,

478 U.S. 421 (1986), it is equally clear that such reme-

dies may not be imposed in the absence of any finding of

discrimination. Just as “an employer would not vio'ate

the statute merely by having a racially imbalanced work

force.” a court “could not order an employer to adopt

racial preferences merely to correct such an imbalance.”

Id. at 453. Nonetheless, that is precisely what the Tenth

Circuit has ordered in this case. Based solely on a sta-

tistical difference in participation rates. the Tenth Circuit

has ordered CSU to immunize women’s athletics from

any cuts until pure statistical proportionality is reached.

Under this injunction, none of the 120 varsity participa-

tion opportunities for women (who make up 48.2 percent

of CSU’s total enrollment) may be eliminated until CSU

16

has eliminated 68 of the currently existing 198 varsity par-

ticipation opportunities for men and has thus arrived at

perfect statistical proportionality of athletic participation

to enrollment.’* Such a draconian result would be im-

permissible in the employment context under section 2000ce-

2(j), and it is likewise unacceptable under section 1681

(b) of Title LX.

Indeed, the Tenth Circuit’s requirement that on/y men’s

athletic programs be eliminated until statistical balance is

achieved is too harsh to stand even where there is a find-

ing of discrimination. Remedial plans, whether voluntary or

court-imposed, are permissible only to the extent that they

do not “unnecessarily trammel[] the rights of male em-

ployees or create[] an absolute bar to their advancement.”

Johnson v. Transportation Agency, 480 U.S. 616, 637-38

(1987); accord, Local 28, Sheet Metal Workers, 478 U.S.

at 479. If the Tenth Circuit’s result in this case does not

“unnecessarily trammel” the rights of male athletes at

CSU, or does not “create an absolute bar to their advance-

ment,” it is hard to imagine what could.

The Johnson Court cautioned against blind reliance on

numbers without consideration of qualifications:

If [an affirmative action] plan failed to take distinc-

tions in qualifications into account in providing guid-

ance for actual employment decisions, it would dic-

tate mere blind hiring by the numbers, for it would

hold supervisors to “achievement of a particular per-

centage of minority employment or membership. . .

regardless of circumstances such as economic condi-

tions or the number of available qualified minority

applicants... .”

480 U.S. at 636 (citation omitted). Rather than “blind

hiring by the numbers,” what the court below has ordered

is essentially “blind firing by the numbers,” since the order

requires the systematic elimination of men’s athletic op-

portunities until statistical proportionality is achieved be-

12 See Roberts, 814 F. Supp. at 1512, 1514-15; Pet. App. at A-7,

A-12.

17

fore a single women’s athletic position may be cut. This

is impermissible.

As this Court has made clear, “distinctions in actual

qualifications” (or, in the Title IX context, distinctions in

“interests and abilities”) must be taken into account, both

in determining liability and in formulating a remedy. By

refusing to take interests and abilities into account, the

decision below reads section 1681(b) out of Title IX and

conflicts with prior holdings of this Court concerning sec-

tion 2000e-2(j).

lil. TITLE IX MUST BE INTERPRETED TO AVOID

THE SERIOUS EQUAL PROTECTION PROBLEMS

RAISED BY THE LOWER COURT’S DECISION.

The court below interpreted Title IX to require a harsh

result: that only men’s athletic opportunities at CSU may

be cut until pure statistical proportionality between male

and female athletic participation at CSU is achieved. This

interpretation raises serious constitutional problems, and

this Court should construe the statute to avoid such prob-

lems. See, e.g., Edward J. DeBartolo Corp. v. Florida

Gulf Coast Building & Constr. Trades Council, 485 US.

568, 575 (1988).

Since the statute, as construed and applied by the

Tenth Circuit, discriminates on the basis of gender by

permitting cuts only in men’s athletic programs, it can

pass constitutional muster only if it serves “important gov-

ernmental objectives” and if the “discriminatory means

employed” are “substantially related to the achievement

of those objectives.” Mississippi University for Women

v. Hogan, 458 U.S. 718, 724 (1982). This Court’s prior

decisions in similar cases make clear that the Tenth Cir-

cuit’s interpretation of Title IX cannot survive such

scrutiny.

In Wygant v. Jackson Board of Education, 476 U.S.

267 (1986), the case most closely on point, the Court

considered the constitutionality of a provision in a col-

lective bargaining agreement that provided for preferential

protection from layoffs for minority schoolteachers. Spe-

cifically, in the event that layoffs became necessary, the

18

provision required that the proportion of minority to

nonminority teachers be preserved, even if nonminority

teachers who had accumulated greater seniority than

some minority teachers would have to be laid off. See id.

at 270.

The Court held that this provision violated the Equal

Protection Clause, U.S. Const. amend. XIV. The plural-

ity gave two reasons for this conclusion. First, the inter-

ests and purposes advanced to justify the racial classifica-

tion were insufficient, because they consisted mostly of

general recitals of societal discrimination and _ statistics

showing that the percentage of minority teachers was

smaller than the percentage of minority students in the

district. The Court held that neither vague recitals nor

Statistical imbalances, without more, were sufficiently com-

pelling to warrant race-based “remedial” measures.’’ Here,

the purposes and interests served by the gender classifi-

cation are similarly vague; the Tenth Circuit’s finding of

a Title IX violation rests, as discussed in Part I above,

purely on a finding of statistical difference, and not on a

finding of discrimination. Such a justification is insuffi-

cient to support a rigid gender-based quota system of the

kind the Tenth Circuit required.

The second reason the Wygant court struck down the

layoff provision at issue in that case was that it “was not

a legally appropriate means of achieving even a com-

pelling purpose.” Jd. at 278. This was so in part because

layoffs are a uniquely intrusive and burdensome method

of achieving racial balance. The Court specifically indi-

cated that, “[alt]hough hiring goals may burden some

innocent individuals, they simply do not impose the same

kind of injury that layoffs impose.” Jd. at 282. Here, the

Tenth Circuit would require, in essence, “laying off” only

13 Similarly, in City of Richmond v. J.A. Croson Co., 488 U.S.

469 (1989), the Court found that a purportedly “remedial” minority

preference program established by the city could not be justified

on the basis of vague recitals of discrimination, or on the basis of

statistical showings that few minority construction firms had been

successful in gaining city contracts.

19

male athletes until gender proportionality is achieved."

This harsh result would violate the Equal Protection

Clause just as the Wygant plan did.”

The Tenth Circuit’s interpretation of Title IX is also

constitutionally suspect because of its use of a rigid quota

system as its “remedial” mechanism. The Court has long

disfavored quota systems, even where the need for reme-

dial measures is clear, because quotas pose virtually in-

surmountable barriers to the advancement of the individ-

uals not granted preferential treatment. In City of Rich-

mond v. J.A. Croson Co., 488 U.S. 469 (1989), for

example, the Court observed that “[s]ince the city must

'! The fact that the “layoffs” here involve athletic opportunities,

not jobs, is irrelevant; the distinction made by the Court in Wygant

was between the dilution of opportunity resulting from affirmative

action in hiring programs and the denial of opportunity resulting

from layoffs: “In cases involving valid hiring goals, the burden to

be borne by innocent individuals is diffused to a considerable ex-

tent among society generally.” 476 U.S. at 282 (emphasis in origi-

nal). The nature of the deprivation suffered by male athletes whose

athletic opportunities are to be cut under the Tenth Circuit’s read-

ing of Title IX should not be trivialized.

15 Metro Broadcasting, Inc. v. Federal Communications Comm’n

497 U.S. 547 (1990), is not to the contrary. Metro Broadcasting

involved minority preference policies adopted by the Federal Com-

munications Commission with respect to the allocation of radio and

television broadcast licenses. The Court gave considerable weight

to the “scarcity of [electromagnetic frequencies],” noting that be-

cause of that scarcity

‘“. .. the Government is permitted to put restraints on licensees

in favor of others whose views should be expressed on this

unique medium.” The Government’s role in distributing the

limited number of broadcast licenses is not merely that of a

“traffic offier”; rather, it is axiomatic that broadcasting may

be regulated in light of the rights of the viewing and listening

audience and that “the widest possible dissemination of infor-

mation from diverse and antagonistic sources is essential to

the welfare of the public.”

Id. at 566-67 (citations omitted).

Moreover, in Metro Broadcasting the minority preferences were

in effect “hiring preferences,” and did not require “laying off” any

current holders of licenses.

20

already consider bids and waivers on a case-by-case basis,

it is difficult to see the need for a rigid numerical quota.”

Id. at 508. Similarly, in Regents of University of Califor-

nia v. Bakke, 438 U.S. 265 (1978), the Court struck

down the university’s admissions quota system, but refused

to enjoin the university from ever considering the race

of an applicant as part of its admissions program.

Where, as here, a particular interpretation of a statute

would raise serious constitutional problems, the Court will

construe the statute to avoid such problems unless the

constitutional construction is plainly contrary to the intent

of Congress. See, e.g., Edward J. DeBartolo Corp., 485

U.S. at 575 (because National Labor Relations Board’s

construction of the National Labor Relations Act to pro-

scribe peaceful handbilling raised serious First Amend-

ment issues, Court would construe statute so as not to

forbid such handbilling); National Labor Relations Bd.

v. Catholic Bishop, 440 U.S. 490, 499-501 (1979). This

Court therefore should grant certiorari in this case in

order to ensure that Title IX is not construed in an un-

constitutional manner.

CONCLUSION

For the reasons set forth above, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

PHILIP BURLING

Counsel of Record for

Of Counsel: Amici Curiae

BEVERLY E. LEDBETTER STEPHEN B. DEUTSCH

BROWN UNIVERSITY STEPHEN D. SOWLE

Office of the General Counsel FoLey, HoaG & ELIoT

Providence, RI 02912-3122 One Post Office Square

(401) 863-1104 Boston, MA 02109

GEORGE A. DAVIDSON (617) 482-1390

HUGHES HUBBARD & REED

One Battery Park Plaza

New York, NY 10004

(212) 837-6585

November 8, 1993