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Title IX
[Dale Anderson’s Note: I understand that Brown was leaning towards not appealing its case to the Supreme Court before it received the following letter from Congressman Dennis Hastert. You can thank Congressman Hastert by contacting your own Congressman and educating him/her.] February 3, 1997 Dear Dr. Gregorian I am writing to you on a matter of utmost importance to the future of college athletics. It has come to my attention that you are debating whether to petition the United States Supreme Court for certiorari in the Cohen case. I realize that your decision is a difficult one, as such an appeal will undoubtedly be costly in university resources. However, I suggest that a failure to pursue an appeal in this case would ultimately be far more costly not just to Brown University, but to future generations of college athletes and higher education as a whole. As you know, the central issue in the Cohen case involves the interpretation of Title IX of the 1972 Higher Education Act. Like you, I strongly support the original goal of Title IX – equal opportunity for both women and men who wish to participate in college athletics. It is my deeply held conviction that there is no place for discrimination in our society, whether it be based on sex, race, religion, or any other factor. A strong, properly interpreted Title IX is a key element in combating discrimination. Unfortunately, in recent years, the Department of Education has changed its interpretation of Title IX. It is now using Title IX as the basis to justify what appears to be a gender-based quota system for college athletics. This new interpretation undermines the original intent of Title IX, and has served to bring a great degree of confusion and litigation to higher education, as you well know. Current Department of Education Title IX policies could indeed be viewed as promoting reverse discrimination. This issue has been of keen interest to the Congress during the last several years. At the May 9, 1995 hearing on Title IX held by the House Subcommittee on Postsecondary Education, Training, and Lifelong Learning, you testified as to Brown University’s experiences with Title IX. Your testimony highlighted the federal government’s near exclusive emphasis on the proportionality prong for Title IX compliance. As a result of this hearing, 136 Members of Congress signed a letter to Assistant Secretary of Education for Civil Rights, Norma Cantu, asking for a new policy interpretation that provides equal emphasis to the second and third prongs. Most importantly, this letter also clarifies the intent of Congress that no athletic opportunities be eliminated as result of the Title IX anti-discrimination statute. Later in the year, Congress showed its continued interest in this issue by placing language in the FY 1996 Labor-HHS appropriations bill regarding Title IX. This language mandated that the Department of Education issue updated policy guidance to colleges and universities, including specific criteria of how institutions of higher education can demonstrate a history and continuing practice of program expansion for members of the under represented sex, and full and effective accommodation of the interest and abilities of the under represented sex. Unfortunately, due to circumstances surrounding the 1995-1996 budget impasse, this language did not ultimately become law. Thus, the most immediate opportunity to resolve some of the important questions regarding this issue would seem to rest in the court system with the Cohen case. Although Brown recently lost a 2-1 decision in the Federal Appeals Court for the 1st Circuit in the Cohen case, I believe that the dissenting opinion written by Chief Judge Torruella offers a strong basis for appeal to the Supreme Court and presents a reasonable chance that the decision of the lower court would be reversed. Without reciting his entire dissenting opinion, I would like to discuss a few fundamental points. First, in acting Title IX, Congress did not intend it to be a measure that would tie the hands of educational administrators when managing athletic programs. Chief Judge Torruella state in his dissent: "The majority, in its opinion today, and the District Court before it, have failed to give Brown University freedom to craft its own athletic program and to choose the priorities of that program. Instead, they have established a legal rule that straightjackets college athletics programs by curtailing their freedom to choose the sports they offer."" Second, I am afraid that if the ruling of the Appeals Court were to stand, it would set a dangerous precedent by signaling to colleges and universities that the easiest way to comply with Title IX would be to eliminate men’s sports rather than to add new opportunities for women. Even worse, almost every male program in the country has been "capped" which means that even if administrators and coaches want these young men to walk on to the teams, without a scholarship, these student-athletes, who pay their own tuition room, and board, may not compete because of the quota imposed by the Department of Education. I fail to see how women gain by the elimination of opportunities for men and the creation of no new opportunities for women. In addition, I have deep concerns that an expanding pattern of eliminating men’s sports programs will have an especially adverse impact on African-Americans, Hispanics, other minority groups, and those with low incomes. Already, hundreds of men’s programs in wrestling, gymnastics, swimming, track, and other sports have been eliminated. A failure to appeal this case raises the alarming possibility that this trend will continue and accelerate. When we eliminate these opportunities for young men to better themselves, we are shortchanging our future by denying young men the opportunity to build character, receive an education, and become leaders. Finally, and most importantly, as mentioned earlier, Congress enacted Title IX to eliminate discrimination. The Education Department and some lower courts have seemingly misconstrued and misapplied this intent through their near-exclusive emphasis on the "proportionality" standard turning Title IX into a de-facto quota. Chief Judge Torruella recognizes this when he asserts unequivocally that the three-prong test as applied in the Cohen case is an unconstitutional quota. The American people know quotas, in any form, are wrong. The aspirations, goals, and dreams of young. Men and women cannot be reduced to a mere numerical exercise or expressed as a ratio of proportionality. We can, and must, do better for our young men and women. Every college athlete, male and female, must have the widest possible range of opportunities available to him or her. By pursuing an appeal to the Supreme Court in the Cohen case, Brown University can be of great assistance to this goal. The importance of this issue is evident and paramount. I believe your case is strong, and it deserves to be heard in the highest court of the land. No school has been, or probably ever will be, situated as well as you to vindicate the right of educational administrators to run schools in the manner they see fit and for the benefit of all students. At this moment in time, you are uniquely positioned to ask the Supreme Court to review this very important legal question and examine the Education Department’s apparent creation of a quota system for college athletics. The views expressed in this letter on Title Ix are shared by many other Members of Congress who have expressed a strong interest in this issue. Therefore, I strongly urge you to proceed with an appeal of the Cohen case to the Supreme Court. I appreciate your time and consideration of this matter. I can be of any further assistance to you, please do not hesitate to contact me. Sincerely, J. Dennis Hastert
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