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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

May 15, 1995

If any good can be said to have come from the recent court ruling that Brown University discriminates against women in its athletic programs, it is that it may lead to an examination of the intent of the law Brown supposedly violated and a reassertion of common sense in interpreting it.

In 1992, nine women sued Brown for violating Title IX of the Education Amendments of 1972, which forbids schools that receive federal funds from discriminating against students on the basis of sex.

They based their case on Brown's decision to strip the women's gymnastics and volleyball teams of varsity status to cut costs, even though the school also axed the men's varsity golf and water polo teams.

In a stunning decision that reflects a basic misunderstanding of the intent of Title IX and of human nature as well, U.S. District Judge Raymond Pettine ruled that Brown had violated the law because while 51 percent of its students are women, only 38 percent of its athletes are. According to Pettine, the proportion of women on athletic teams must "mirror" the total proportion of women students. If women students outnumber men students, then women athletes must outnumber men athletes.

Anyone who has ever been to a Super Bowl party knows what's wrong with that logic. While many women are interested in sports and while women participate in increasing numbers, far more men than women make sports part of their lives.

Ironically, Brown University is considered a leader in women's collegiate athletic opportunity: It offers 17 varsity sports for women and 16 for men. But only 338 women participate compared with 555 men. And though the school submitted surveys showing that fewer women than men students were interested in participating, the judge wasn't buying it.

To be fair, Judge Pettine didn't pull the notion of athletic "gender parity" out of his hat. It is one of three tests established by the Education Department's Office of Civil Rights by which schools can prove they are complying with Title IX.

However, the other two tests--showing a growth of women's sports programs over time and proving that the sports program effectively meets the interests and abilities of female students--are vague and were given short shrift in the Brown case.

It's one thing to offer any one of three ways to prove compliance with the law and quite another to make parity the only way, which happened in the Brown decision. If it is upheld on appeal, Congress should take a new look at Title IX, not to repeal it but to clarify its intent and refine its guidelines.

The law's intent was to assure women the same opportunities as men on college campuses, and that is still a valid concern. It was never intended to create a numbers game that inhibits, rather than enhances, campus athletics.

Copyright Chicago Tribune

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