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The Brown University News Bureau

1996-1997 index

Mark Nickel, Director

BEVERLY E. LEDBETTER       MAUREEN E. MAHONEY
 General Counsel            Counsel of Record
Brown University           MINH N. VU
One Prospect Street        LATHAM & WATKINS
101 University Hall        1001 Pennsylvania Avenue, N.W.
Providence, RI 02912       Suite 1300
(401) 863-1104             Washington, D.C. 20004
                           (202) 637-2200
                           JULIUS C. MICHAELSON
                           JEFFREY S. MICHAELSON
                           MICHAELSON, MICHAELSON &
                            ZURIER
                           321 South Main Street
                           Providence, RI 02903
                           (401) 277-9300
                           Counsel for Petitioners,
                            Brown University, et al.




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QUESTIONS PRESENTED

1. Whether a university that seeks to offer varsity
teams that will accommodate the athletic interests of
qualified men and women equally effectively can be found
liable for "discrimination" on the "basis of sex" within
the meaning of 20 U.S.C. § 1681 (a) of Title IX based
on evidence that (1) the percentage of women partici-
pating in varsity athletics is lower than the percentage of
women in the student body, without regard to the per-
centage of women in the pool of qualified athletes seeking
to participate in varsity sports; and (2) there are some
qualified women in the student body who want to play
on a viable varsity team that is not being funded as part
of the university's athletic program, without regard to
the number of similarly situated men.

2. Whether 20 U.S.C. § 1681 (b) of Title IX--which
provides that "nothing" in Section 1681 (a) "shall be
interpreted to require" a university "to grant preferential
or disparate treatment" on account of an "imbalance"
between the gender ratio of a federally supported program
and "any community"--prohibits the adoption of standards
governing liability that effectively require universities to
afford varsity opportunities to qualified women in prefer-
ence to qualified men in an effort to make the gender
ratio of the varsity athletic program conform to the gender
ratio of the student body.

3. Whether an interpretation of 20 U.S.C. § 1681
that effectively requires universities receiving federal funds
to grant preferential treatment to women athletes in order
to redress real or perceived societal discrimination would
raise a serious question under the Equal Protection Guar-
antee of the Constitution by denying similarly situated
male athletes an equal opportunity to participate in varsity
sports.

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PARTIES TO THE PROCEEDING

The petitioners in this case are Brown University,
Vartan Gregorian, in his official capacity as President
of Brown University, and David Roach, in his official
capacity as Athletic Director of Brown University. The
respondents are Amy Cohen, Eileen Rocchio, Nicole A.
Turgeon, Karen A. McDonald, Melissa Kuroda, Lisa C.
Stern, Jennifer Hsu, Jennifer E. Cloud, Darcy Shearer,
Jody Budge, and Megan Hull, each individually and on
behalf of all others similarly situated.

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RULE 29.1 STATEMENT

Petitioner Brown University is a not for profit corpora-
tion. It has no parent or subsidiaries. Petitioners Vartan
Gregorian and David Roach are individuals.

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            TABLE OF CONTENTS

QUESTIONS PRESENTED...........................    i

PARTIES TO THE PROCEEDING.....................   ii

RULE 29.1 STATEMENT...........................  iii

TABLE OF AUTHORITIES..........................    v

OPINIONS BELOW................................    1

GROUNDS FOR JURISDICTION......................    1

STATUTES AND CONSTITUTIONAL PROVISIONS
  INVOLVED....................................    1

STATEMENT OF THE CASE.........................    2

A. The Statutory and Regulatory Framework.....    3

B. Brown's Efforts to Provide Equal Opportunity
   to Male and Female Athletes................    6

C. Proceedings in the Courts Below............    9

REASONS FOR GRANTING THE WRIT.................   15

I. THE DECISION OF THE FIRST CIRCUIT
   CONFLICTS WITH THIS COURT'S PRECE-
   DENTS......................................   17

 A. The First Circuit Disregarded This Court's
    Holdings That An Inference Of Discrimina-
    tion Can Only Be Predicated On A Statisti-
    cal Comparison With A Pool Of Interested
    And Qualified Candidates..................   17

 B. The First Circuit's Conclusion That Section
    1681 Obligates Universities To Afford Pref-
    erential Treatment To Women Conflicts With
    This Court's Interpretation Of The Same
    Language In Title VII.....................   20

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 C. The First Circuit's Conclusion That Congress
    Could Permissibly Require Universities To
    Establish Quotas To Remedy Perceived Soci-
    etal Discrimination Against Women Conflicts
    With This Court's Precedents Interpreting
    The Equal Protection Guarantee Of The
    Constitution..............................   24

II. THE PETITION PRESENTS ISSUES OF EX-
    CEPTIONAL IMPORTANCE THAT WAR-
    RANT RESOLUTION BY THE COURT AT
    THIS TIME.................................   27

 A. Compliance With The Affirmative Action
    Obligations Imposed By The Prevailing In-
    terpretation Of Title IX Will Have A Pro-
    found And Detrimental Impact On Programs
    At Virtually Every University In America..   27

 B. This Court Should Not Postpone Review
    Pending Further Consideration By The
    Courts Of Appeals.........................   29

CONCLUSION....................................   30

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                       TABLE OF AUTHORITIES

CASES

Bush v. Vera, 116 S. Ct. 1941 (1996)...................... 23
Califano v. Webster,  430 U.S. 313 (1977)................. 26
Cannon v. Univ. of Chicago,  441 U.S. 677 (1979).......... 29
City of Richmond v. J.A. Croson Co., 488 U.S. 469
   (1989)............................................. passim
Cohen v. Brown Univ.,  101 F.3d 155 (lst Cir.
   1996).............................................. passim
Cohen v. Brown Univ.,  879 F. Supp. 185 (D.R.I.
   1995).............................................. passim
Cohen v. Brown Univ.,  991 F. 2d 888 (1st Cir.
   1993).............................................. passim
Cohen v. Brown Univ.,  809 F. Supp. 978 (D.R.I.
   1992).............................................. passim
Edward J. DeBartolo Corp. v. Florida Gulf Coast
   Bldg.& Constr. Trades Council,  485 U.S. 568
   (1988)................................................. 24
Favia v. Indiana Univ. of Pennsylvania,  7 F.3d
   332 (3d Cir. 1993)..................................... 16
Franklin v. Gwinnett County Public Schools,  503
   U.S. 60 (1992)..................................... 18, 24
Horner v. Kentucky High School Athletics Ass'n,
   43 F.3d 265 (6th Cir. 1994)............................ 16
International Bhd. of Teamsters v. United States,
   431 U.S. 324 (1977).................................... 22
Johnson v. Transp. Agency,  480 U.S. 616 (1987) .......... 27
Kelley v. Bd. of Trustees of the Univ. of Illinois,
   35 F. 3d 265 (7th Cir. 1994),  cert. denied,  115
   S. Ct. 938 (1995).................................. 16, 30
Metro Broadcasting, Inc. v. FCC,  497 U.S. 547
   (1990)................................................. 26
Mississippi Univ. for Women v. Hogan,  458 U.S.
   718 (1982)......................................... passim
Orr v. Orr,  440 U.S. 268 (1979)...................... 25, 26
Oscar Mayer & Co. v. Evans,  441 U.S. 750 (1979).......... 22
Regents of the Univ. of California v. Bakke,  438
   U.S. 265 (1978)................................ 15, 22, 26
Roberts v. Colorado State Univ.,  998 F.2d 824
   (10th Cir. 1993), cert. denied,  510 U.S. 1004 ..... 16, 30

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Sheet Metal Workers Int'l. Ass'n v. EEOC,  478
   U.S. 421 (1986)....................................... 22
Stinson v. United States, 508 U.S. 36 (1993).............. 18
Texas Dep't of Community Affairs v. Burdine,  450
   U.S. 248 (1981)........................................ 22
United States v. Virginia,  116 S. Ct. 2264 (1996)........ 24
Wards Cove v. Atonio,  490 U.S. 642 (1989)............passim
Watson v. Fort Worth Bank & Trust,  487 U.S. 977
   (1988)................................................ 21, 28
Wygant v. Jackson Bd. of Education,  476 U.S. 267
   (1986).................................................... 26

STATUTES AND REGULATIONS

   United States Constitutional Amendment V.................. 11
   20 U.S.C. § 1681 (1994)............................... passim
   20 U.S.C. § 1681(a) (1994)............................ passim
   20 U.S.C. § 1681(b) (1994)............................ passim
   20 U.S.C. § 1681 note (1994)............................... 3
   20 U.S.C. § 1682 (1994).................................... 3
   28 U.S.C. § 1254(1) (1994)................................. 1
   42 U.S.C. § 2000e-2(a) (1994)............................. 19
   42 U.S.C. § 2000e-2(j) (1994).............................. 21
   34 C.F.R. § 106.41 (c)  (1995)..................... 4, 11, 18
   34 C.F.R. § 106.41 (c) (1) (1995)...................... 4, 18
   39 Fed. Reg. 22,228 (1974)................................. 3
   40 Fed. Reg. 24,128 (1975)................................. 4

MISCELLANEOUS

   HEW Policy Interpretation 44 Fed. Reg. 71,413-
      71,419 (1979)...................................... passim
   H.R. Rep. No. 554, 92nd Cong., 2nd Sess. (1972),
      reprinted in 1972 U.S.C.C.A.N. 2462.................... 25
   H.R. Rep. No. 102-40 (1), 102nd Cong., lst Sess.
      (1991), reprinted in 1991 U.S.C.C.A.N. 549............. 19
   117 Cong. Rec. 39,261 (1971)...............................  3
   Department of Education, Office for Civil Rights,
      Title IX Intercollegiate Athletics Investigator's
      Manual (1980)......................................... 5, 6
   Department of Education, Office for Civil Rights,
      Letter of the Assistant Secretary and Clarifica-
      tion Memorandum, January 16, 1996.................... 5, 29

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PETITION FOR A WRIT OF CERTIORARI

Petitioners Brown University ("Brown"), Vartan
Gregorian, and David Roach (referred to collectively as
"Brown") hereby request this Court to issue a writ of
certiorari to review the judgment of the United States
Court of Appeals for the First Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals affirming the
district court's judgment that Brown violated Title IX,
and reversing and remanding the district court's remedial
relief (App. at 1a), is reported at 101 F.3d 155 (1st Cir.
1996) ("Cohen IV"). The opinion and order of the
district court finding that Brown violated Title IX (App.
at 85a) are reported at 879 F. Supp. 185 (D.R.I. 1995)
("Cohen III"). The district court's modified order and
opinion (App. at 150a) are not reported. The opinion
of the Court of Appeals affirming the district court's entry
of a preliminary injunction (App. at 167a) is reported at
991 F.2d 888 (1st Cir. 1993) ("Cohen II"). The opinion
and order of the district court granting a preliminary
injunction (App. at 202a) are reported at 809 F. Supp.
978 (D.R.I. 1992) ("Cohen I").

GROUNDS FOR JURISDICTION

The judgment of the Court of Appeals (App. at I a) was
entered on November 21, 1996. No petition for rehearing
was filed. Petitioner invokes the jurisdiction of this Court
pursuant to 28 U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED

This case concerns Title IX of the Education Amend-
ments of 1972, 20 U.S.C. § 1681, 34 C.F.R. § 106.41,
and the Equal Protection Guarantee of the Fifth Amend-
ment to the United States Constitution. The provisions
at issue are set forth in the Appendix at 251-316a.

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STATEMENT OF THE CASE

At the time of the trial in this case, the court found
that women represented 51% of the student body at
Brown University, and had the opportunity to participate
on 16 women's varsity teams and two co-ed teams. Cohen
III, App. at 98a, 96-97a & n.20. Despite this wealth
of opportunity for women, the First Circuit held that
Brown engaged in sex discrimination prohibited by Title
IX, 20 U.S.C. § 1681, because its athletic program--
which was designed to accommodate the interests and
abilities of all athletes--did not produce "gender parity
between its student body and its athletic lineup." Cohen
II, App. at 181a. The First Circuit determined that the
statistical difference between the gender composition of
Brown's student body and its athletic program supported
an inference of discrimination based upon an irrebutable
presumption that "women, given the opportunity, will nat-
urally participate in athletics in numbers equal to men."
Id., App. at 187a.

The Court accordingly refused to consider overwhelm-
ing evidence that Brown's athletic program did not
achieve "gender parity" with the student body because
women did not represent 51% of the qualified athletes
seeking to participate in varsity sports. As a result,
the only feasible way that Brown could have complied
with Title IX, as interpreted by the First Circuit, would
have been to adopt a gender-conscious program, based on
a numerical quota, to set aside up to 51% of its varsity
positions for qualified women athletes. Had Brown fol-
lowed that course, and thereby denied male athletes an
equal opportunity to participate in varsity sports, it could
have entered a "safe harbor" and "stay[ed] on the sunny
side of Title IX." Id., App. at 181a. The central issue
here is whether a university's refusal to abandon a pro-
gram based on equal opportunity for all qualified athletes
in favor of one based on preferential treatment for women
provides a basis for liability under Title IX.

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A. The Statutory and Regulatory Framework

Title IX of the Education Amendments of 1972
prohibits sex discrimination in education programs or
activities receiving federal financial assistance: "No 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." 20
U.S.C. § 1681 (a). Section 1681 also explicitly prohibits
the compelled use of preferences to create gender balance
in university programs. Section 1681(b) states that
"[n]othing" in Section 1681(a) "shall be interpreted to
require" any institution "to grant preferential or disparate
treatment to the members of one sex on account of an
imbalance" between the "percentage of persons of that
sex participating in . . . [a] federally supported program"
and the "percentage of persons of that sex in any com-
munity, State, section, or other area." 20 U.S.C.
§ 1681(b).[fn1]

The Department of Health, Education & Welfare
("HEW") issued proposed implementing regulations con-
cerning intercollegiate athletics in 1974.[fn2] See 39 Fed.
Reg. 22,228, 22,230 (1974). Two sections of the pro-
posed regulation would have required "affirmative efforts"
to "equalize opportunities" for members of both sexes.

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Id. at 22,230. HEW eliminated those requirements from
the final regulation because they "could be considered
affirmative action,'" which is barred by Section 1681 (b).
See 40 Fed. Reg. 24,128, 24,134 (1975). Instead, the
final regulation added a list of ten non-inclusive factors
that the Secretary "will consider" to determine "[w]hether
equal opportunities are available" for "members of
both sexes" in college athletic programs. 34 C.F.R.
§ 106.41(c) (the "regulation"); 40 Fed. Reg. at 24,134.[fn3]
No part of the regulation encourages or requires statistical
balancing of any kind. Id.

In 1979, HEW issued a Policy Interpretation that the
First Circuit relied upon to establish the legal standard
for proving a violation of Title IX. See Policy Interpreta-
tion, 44 Fed. Reg. 71,413 (1979). The Policy Interpre-
tation establishes a three-part standard to determine
"whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of mem-
bers of both sexes"--the first of the ten factors set forth
in the regulation. 34 C.F.R. § 106.41 (c) (1) (emphasis
added). Universities will be found in compliance if:

(1)"intercollegiate level participation opportuni-
ties for male and female students are provided in
numbers substantially proportionate to the respective
enrollments"; or

(2)"the institution can show a history and con-
tinuing practice of program expansion which is
demonstrably responsive to the developing interest

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and abilities of the members of [the underrepresented]
sex"; or

(3)"it can be demonstrated that the interests
and abilities of the members of [the underrepresented]
sex have been fully and effectively accommodated by
the present program."

44 Fed. Reg. at 71,418. The Office For Civil Rights for
the Department of Education ("OCR"), the agency now
responsible for Title IX enforcement, interpreted this
policy to mean that institutions are required to "meet the
interests and abilities of women to the same degree as they
meet the interests and abilities of men," and that they are
"not requir[ed] . . . to offer . . . intercollegiate partici-
pation opportunities" that are "proportional" to the "divi-
sion by sex of the total student enrollment." OCR Title
IX Intercollegiate Athletics Investigator's Manual ("OCR
Manual") at 122 (1980) (emphasis added). App. at
291-93a.

During the course of this litigation, OCR changed
course, and adopted the First Circuit's interpretation of
the three-part standard as its own. See "Clarification of
Intercollegiate Athletics Policy Guidance: The Three-Part
Test" dated Jan. 16, 1996 and cover letter from Norma
V. Cantu. App. at 294-316a. Under OCR's new inter-
pretation of the first two parts of the standard, a univer-
sity will be found to offer a nondiscriminatory selection
of sports if the ratio of male and female athletes in its
varsity program satisfies a numerical test--substantial pro-
portionality with the gender ratio of the student body--
or if the program numbers have continually increased to-
wards that benchmark. Id., App. at 305a, 307-09a. A
university's failure to meet that numerical test can be
excused under the third part of the standard, but only if
the university funds all viable sports teams that qualified
women in the student body would like to play. Id., App.
at 312-14a. See also Amicus Brief of the United States
at 18, filed in Cohen IV, C.A. No. 95-2205 (January 26,
1996) (supporting plaintiffs). Under this interpretation,
a university can no longer comply by "meet[ing] the

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interests and abilities of women to the same degree as they
meet the interests and abilities of men." OCR Manual,
App. at 292a (emphasis added); Amicus Brief of the
United States at 18.

B. Brown's Efforts to Provide Equal Opportunity to Male
   and Female Athletes

1. Brown University has been a national leader in
providing collegiate opportunities for women. At the time
of the trial in this case, 51.1% of the student body was
female, one of the highest percentages of women in the
Ivy League. And Brown was in the forefront of women's
athletics with an "impressive history of program expan-
sion" that began shortly after Brown became coeduca-
tional in 1971. See Cohen III, App. at 140a (emphasis
deleted). Brown added 14 funded women's varsity teams
to its program between 1971 and 1977, created a women's
winter track team in 1982, and today offers many more
sports for women than most universities in the United
States. Cohen I, App. at 204a, 206a; 334a. There is no
dispute, however, that the percentage of women partici-
pating in Brown's varsity athletic program did not mirror
the percentage of women in its student body. The issue
in this case is whether that statistical imbalance was the
product of "discrimination" prohibited by Title IX. 20
U.S.C. § 1681.

2. The district court did not make any finding that
Brown allocated athletic participation opportunities based
on an animus towards women, and the record evidence
confirmed that Brown attempted to design its sports selec-
tion in a way that would give interested men and women
an equal chance to participate in varsity athletics. In
determining what sports should be offered, Brown evalu-
ated numerous factors, including "the number of high
school students available who want to play," and the
"interests and abilities of the student body." See App. at
334-35a. Under Brown's approach to program develop-
ment--which did not use a numerical quota or seek to
engineer the gender composition of its program--women
would only have been likely to secure 51% of the varsity

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opportunities if they had represented 51% of the group
of interested athletes. They did not.

At trial, Brown presented overwhelming evidence that
among prospective and current students interested in var-
sity athletic participation, men substantially outnumbered
women, and the district court made no findings to the
contrary. Defendants' expert, Dr. Finis Welch, "a promi-
nent labor economist," Cohen III, App. at 125a, con-
luded that "men express greater interest in, and actually
participate in, competitive sports to a much larger degree
than do women." App. at 317a. Dr. Welch's conclusion
was based on "an extensive search and review of large
nationally representative data sources" which included,
inter alia,  a review of seven different surveys conducted
by independent institutions concerning young men's and
women's interest and participation in sports at the national
level, see Id., App. at 320-27a, in addition to an extensive
review and tabulation of data from the 65,829 applica-
tions received by Brown for the classes of 1994-1998 con-
cerning applicants' interest in sports participation at
Brown. See App. at 318.[fn4]

Brown's view that the gender ratio of the student body
should not be used as a benchmark for equal opportunity
in its athletic program can best be illustrated by a hypo-

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thetical that demonstrates the effects of such a quota.
The hypothetical assumes:

* The ratio of men to women in the student body is
  50/50
* There are 160 varsity positions to be allocated
* There are 200 qualified applicants (interested and
  able athletes)
* 120 of the athletes are men (60% ) and 80
  are women (40%)


                      Athletes
                      Offered        Dis-        % Chance
Basis For             A Varsity      appointed      for
Allocation   Gender   Position       Athletes    Participation
______________________________________________________________

                         80
Student       Men   (50%of 160)       40          67%
Body Ratio               80
             Women  (50% of 160)       0         100%
______________________________________________________________

                         96
Interest      Men   (60% of 160)      24          80%
and Ability              64
             Women  (40% of 160)      16          80%
______________________________________________________________

As this hypothetical illustrates, each individual, regard-
less of gender, has an equal chance of participating in
varsity athletics if the interests of all qualified athletes are
considered when the program is designed.[fn5] In contrast,
an approach that allocates opportunities based on the
ratio of the student body--a ratio that has no demon-
strable relationship to athletic interest and ability--affords
each woman a much higher chance of participation than

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each man. In this hypothetical, all interested women are
accommodated, while 40 men are not, despite the fact
that all the athletes are similarly situated.

3. In May 1991, Brown issued a university-wide di-
rective to implement budget cuts. As part of that effort,
Brown changed the status of two men's varsity teams (golf
and water polo) and two women's varsity teams (gym-
nastics and volleyball) by requiring the teams to secure
all of their funding from donors. The change affected 37
men and 23 women. Cohen I, App. at 206a.

C. Proceedings in the Courts Below

In 1991, members of the women's gymnastics and
volleyball teams filed a class action alleging that Brown
had discriminated against women athletes in violation of
Title IX. The district court and the First Circuit approved
the issuance of preliminary and permanent injunctive relief
based upon the conclusion that Brown had not complied
with the Policy Interpretation's three-part test.

1. After a 14-day evidentiary hearing, the district
court granted a preliminary injunction that ordered Brown to
restore university funding to the women's gymnastics and
volleyball teams, and to continue funding all existing
women's teams pending the outcome of the case. Cohen
I, App. at 248-49a. The court held that a finding of
discrimination can be based solely upon an institution's
failure to meet the three-part test in the Policy Interpre-
tation, and that plaintiffs were likely to prevail on their
claim that Brown failed to meet anv part of the test. Id.,
App. at 227a. Brown appealed pursuant to 29 U.S.C.
§ 1292 (a)( I). The First Circuit affirmed.

The Court of Appeals relied upon the Policy Interpre-
tation to establish the evidentiary standard governing
proof of a Title IX violation. See Cohen 11, App. at 190a.
The Court held that the first part of the test--the numeri-
cal quota--operates as a "safe harbor." Id., App. at 181a.
As a result, any university that "does not wish to engage
in extensive compliance analysis may stay on the sunny
side of Title IX simply by maintaining gender parity be-
tween its student body and its athletic lineup." Id. The

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First Circuit also construed the second part of the test to
use the same quota as a benchmark for compliance. The
Court reasoned that institutions could achieve compliance
under that part by "continually expanding athletic oppor-
tunities in an ongoing effort to meet the needs of the
underrepresented gender" because "Title IX does not re-
quire that the university leap to complete gender parity
in a single bound." Id. With respect to the third part,
the First Circuit held that, "[i]f there is sufficient interest
and ability among members of the statistically underrepre-
sented gender, not slaked by existing programs, an insti-
tution necessarily fails this prong of the test." Id., App.
at 182a. The Court approved the second and third parts
of the test as appropriate "prox[ies] for gender balance."
Id., App. at 181a.

The First Circuit rejected Brown's contention that it
had not engaged in discrimination by allocating more than
50% of its varsity opportunities to men because men
represented substantially more than half of the pool of
interested and able athletes. The Court characterized that
view as "myopic" because "[t]he fact that the overrepre-
sented gender is less than fully accommodated will not,
in and of itself, excuse a shortfall in the provision of
opportunities for the underrepresented gender." Id., App.
at 184a. In addition, the First Circuit asserted that it
would be difficult to determine the relative athletic inter-
ests of men and women. Id., App. at 185-86a. The Court
found it more expedient to adopt an irrebuttable pre-
sumption that "women, given the opportunity, will natu-
rally participate in athletics in numbers equal to men."
Id., App. at 187a. It accordingly held that Title IX
plaintiffs can meet their burden of proving discriminatory
conduct through proof of a "numerical disparity, coupled
with unmet interest," and that this proof can be rebutted
only by evidence that the university continuously and
"uninterruptedly" expanded women's athletic participa-
tion. Id., App. at 190a, 198a.

Finally, the Court of Appeals concluded that the Policy
Interpretation was consistent with Section 1681 because

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=     End Page 10      =
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it "draws its essence from the statute," and does not raise
any serious constitutional questions. Id., App. at 184-
85a. The Court rejected Brown's argument that the statute
could not require universities to accommodate women's
athletic interests in preference to men's athletic interests
without violating the Equal Protection Guarantee of the
Fifth Amendment because "Congress has broad powers
. . . to remedy past discrimination." Id., App. at 187a.

2. After the conclusion of a 30-day bench trial in
September of 1994, the district court determined that
Brown had violated Title IX by failing to fund a sufficient
number of sports for women. First, the district court
found a "presumption" of discrimination because Brown's
program did not satisfy the numerical quota established
by the first part of the Policy Interpretation's test. Cohen
III, App. at 86a, 126a. The district court reasoned that
"substantial proportionality is properly found only where
the institution's intercollegiate athletic program mirrors the
student enrollment as closely as possible," in part because
Brown "predetermines the . . . male to female ratio" of
its athletic program. Id., App. at 119-19a (emphasis
added).[fn6] The court found that Brown's program did not
"mirror" its student body at the time of trial based on
its findings that 51.14% of the students were women,
and 38.13% of the varsity athletes were women.[fn7] Id.,
App. at 139a. Second, the court determined that Brown

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could not satisfy part two of the test because "the per-
centage of women participating in Brown's varsity ath-
letic program has remained remarkably steady" despite
"an impressive history of program expansion" shortly after
it became coeducational. Id., App. at 140a (emphasis
deleted). Finally, the court found that Brown had not
satisfied the third part of the test because women on four
unfunded teams--fencing, water-polo, skiing, and gym-
nastics-had "demonstrated the interest and ability" to
compete at the varsity level. Id., App. at 141-42a.[fn8]

The court accordingly found a violation of Title IX
without making any findings concerning the gender com-
position of the pool of interested athletes. The court
reiterated the First Circuit's view that Brown's interest
based approach to allocating participation opportunities
"undermined the remedial purposes of Title IX by limit-
ing required program expansion for the underrepresented
sex." Cohen III, App. at 136a. Acknowledging that the
concept of the "qualified applicant pool" (i.e., qualified
men and women interested in intercollegiate athletics) is
well-settled in Title VII jurisprudence, the court claimed
that a determination of the interested and qualified pool
of potential athletes would be "difficult to administer," and
would impose an "insurmountable task for Title IX plain-
tiffs" because there "is no one measure" of "relative inter-
ests." Id., App. at 135-36a.

The court ordered submission of a compliance plan
within 120 days. Id., App. at 147a. The district court
then rejected Brown's plan and ordered Brown to "elevate
and maintain women's gymnastics, women's water-polo,
women's skiing, and women's fencing to university-funded

========================
=     End Page 12      =
========================

status." Id., App. at 163a, 165a.[fn9] In addition, Brown was
enjoined from "eliminating or reducing in status any
women's varsity team." Id.

3. On appeal pursuant to 28 U.S.C. § 1291, the First
Circuit affirmed the district court's finding of liability with
Chief Judge Torruella dissenting. (Brown's appeal was
not heard by the same panel as the first appeal.) The
terms of the district court's remedial order were reversed
and remanded.

a. Although the Court considered the legal issues ad-
dressed in the preliminary injunction appeal to be law of
the case, Cohen IV, App. at 4a, it nevertheless reviewed
the prior analysis in detail, and confirmed its view that
Title IX permits use of "gender parity" as a benchmark
for measuring compliance because the focus of the statute
is "not on the overrepresented gender, but on the under-
represented gender." Id., App. at 33a. The Court again
found that the concept of the qualified pool "has no place
in a Title IX analysis of equal opportunities for male and
female athletes," because this approach would "under-
mine[] the remedial purposes of Title IX by limiting re-
quired program expansion for the underrepresented sex to
the status quo level of relative interest[]." Id., App. at
30a, 37a. The Court emphasized that "even if it can be
empirically demonstrated that, at a particular time, women
have less interest in sports than do men, such evidence,
standing alone, cannot justify providing fewer athletic
opportunities for women than for men" because it assumed
that women's lower level of interest in athletics is itself
the product of "women's historical lack of opportunities to
participate in sports." Id., App. at 42a, 40a.

The First Circuit reversed the terms of the district
court's remedial order based on considerations of academic
freedom. Id., App. at 59-60a. The district court ex-
ceeded its discretion in that respect by requiring Brown

========================
=     End Page 13      =
========================

to fund additional teams instead of permitting it to pursue
the "statutorily permissible proposal to comply . . . by
cutting men's teams." Id., App. at 54a.[fn10]

b. Chief Judge Torruella dissented. The dissent read
Section 1681 (b) to prohibit rules that require universities
to afford interested women opportunities in preference to
similarly situated men in order to establish compliance
with Title IX. Id., App. at 75a, 80a. The Chief Judge
concluded that "the three prong test," as the prior opinions
interpreted it, did not represent a permissible interpreta-
tion of § 1681 because that test establishes "a quota"
under all three parts. Id., App. at 76a. The dissent ex-
plained that "[the first] prong surely requires statistical
balancing" and "[i]t can hardly be denied that [the second]
prong requires statistical balancing as it is essentially a
test that requires the school to show that it is moving in
the direction of satisfying the first prong." Id., App. at
78a. And the third prong did not change the nature of
the test because "a quota with an exception for situations
in which there are insufficient interested students to allow
the school to meet it remains a quota." Id., App. at 79a.

The dissent agreed with Brown's contention that the
relative interests of men and women had to be evaluated
in assessing issues of discrimination and equal opportun-
ity. Otherwise, where "the rate of interest in athletics di-
verges between men and women at any institution, the
district court's interpretation would require the institution
to treat an individual male student's athletic interest and
an individual female student's athletic interest completely
differently: one student's reasonable interest would have
to be met, by law, while meeting the other student's in-
terest would only aggravate the lack of proportionality
giving rise to the legal duty." Id., App. at 77a. The dis-
sent concluded that Section 1681 did not "require[]

========================
=     End Page 14      =
========================

Brown to allocate its athletic resources to meet the as-yet-
unmet interest of a member of the underrepresented sex,
women in this case, while simultaneously neglecting any
unmet interest among individuals of the overrepresented
sex." Id. Chief Judge Torruella found that his interpreta-
tion of Section 1681 was further required by the "serious
constitutional difficulties" raised by the majority's inter-
pretation. Id., App. at 81a. He underscored the fact that
there had been absolutely no findings by Congress with
respect to discrimination against women in athletics when
Title IX was passed, and no "exceedingly persuasive justi-
fication" for preferences had been advanced. Id., App.
at 80a.

REASONS FOR GRANTING THE WRIT

Title IX, like the constitutional guarantee of equal pro-
tection, embodies the "widely cherished American ethic"
of "[f]airness in individual competition for opportunities."
Regents of the Univ. of California v. Bakke, 438 U.S. 265,
319 (1978) (opinion of Powell, J.) (construing Title VI
and the Equal Protection Clause). Brown's athletic pro-
gram, which provides all interested and able athletes,
whether male or female, an equal chance to secure a place
in its varsity program honors that ethic. The First Cir-
cuit nevertheless held that Brown violated Title IX through
adherence to these gender-neutral principles because its
program did not achieve "gender parity between its stu-
dent body and its athletic lineup," Cohen II, App. at 181a,
did not "march uninterruptedly" towards that goal, Id.,
App. at 198a, and did not fund positions for every quali-
fied woman in the student body interested in competing
on a viable team. Id., App. at 182a.

Under the First Circuit's interpretation of Title IX,
Brown had no choice but to set aside up to 51% of its
varsity opportunities for qualified women because 51 %
of its students were women. That stark numerical quota
was required without regard to the fact that women do
not represent 51 % of all interested athletes, because any
differences in the athletic interests of men and women
were deemed attributable to "socialization and disparate

========================
=     End Page 15      =
========================

opportunities." Id., App. at 187a. Following the First
Circuit's lead, the other circuits to consider the issue have
similarly concluded that Title IX requires colleges to as-
sign coveted athletic opportunities to qualified women on
this same preferential basis.[fn11]

This Court should grant review of the First Circuit's
decision for two reasons. First, the decision of the Court
of Appeals conflicts with this Court's precedents. The
First Circuit committed virtually every error that this
Court has warned against when interpreting the same stat-
utory wording at issue here in the context of Title VII.
The Court of Appeals allowed an inference of discrimina-
tion based on a statistical comparison with the student
body, instead of the qualified pool of athletes seeking to
play varsity sports. It refused to consider evidence that
the statistical disparity it found was the product of differ-
ences in men's and women's relative interest in sports, for
which Brown has no legal responsibility. It adopted a
"safe harbor" that encourages universities to adopt nu-
merical quotas and set aside policies to "stay on the
sunny side of Title IX." Cohen II, App. at 181a.
It adopted evidentiary standards governing proof of liability
that compel universities to institute mandatory quotas and
other preferential treatment expressly forbidden by Sec-
tion 1681 (b). And it read the Equal Protection Guaran-

========================
=     End Page 16      =
========================

tee of the Constitution to be unconcerned about the fact
that universities will have to deny male athletes an equal
chance to participate in varsity sports based on the un-
supported assumption that Congress found that quotas
and set asides were needed to redress societal discrimina-
tion against women.

Second, the use of Title IX to mandate adherence to
preferential quotas presents an issue of exceptional im-
portance that warrants resolution now. Most of the var-
sity athletic programs in the country must be dramatically
altered to increase the percentage of women in order to
comply with the standard at issue here. Universities with
budgetary constraints must cut academic offerings to fund
additional teams for women, cut teams for men, or risk
liability for damages and loss of federal funds. In light
of the uniform position of the circuits and the federal
agency responsible for enforcement, intervention by this
Court is needed to prevent compulsory displacement of
nondiscriminatory programs that offer equal opportunity
to all students with preferential programs that guarantee
"gender parity." Id.

I. THE DECISION OF THE FIRST CIRCUIT CON-
   FLICTS WITH THIS COURT'S PRECEDENTS

A. The First Circuit Disregarded This Court's Hold-
   ings That An Inference Of Discrimination Can Only
   Be Predicated On A Statistical Comparison With
   A Pool Of Interested And Qualified Candidates

Title IX prohibits "discrimination" against students,
whether male or female, "on the basis of sex." 20 U.S.C.
§ 1681 (a). In this case, the lower courts found that
Brown engaged in unlawful "discrimination" based on a
presumption derived from statistical proof that the per-
centage of women in its student body exceeded the per-
centage of women in its athletic program. One would think
that Brown's tremendous success in attracting women to
its student body would suggest the absence of discrimina-
tory policies. But here, that was the very evidence that
was used to supply "proof" that Brown's athletic program

========================
=     End Page 17      =
========================

was discriminatory.[fn12] And the Court refused to consider
overwhelming evidence indicating that the disparity was
attributable to the fact that there are many fewer women
than men who want to participate in varsity athletics, find-
ing that such evidence was "irrelevant" and ridiculing
Brown's view of its relevance to proof of discrimination as
"myopic." Cohen II, App. at 184a. Even if Brown could
fill 51% of its athletic program with qualified women, by
preferring interested women over interested men, gender-
blind policies would not produce that result in the real
world where men and women-for a variety of reasons
unrelated to Brown's conduct to not share an equal
interest in varsity competition. See supra at 7-8. There
was accordingly no basis whatsoever to support a finding
of "discrimination," 20 U.S.C. § 1681(a), or a denial
of "equal opportunity," 34 C.F.R. § 106.41(c), based on
the statistical proof used by the courts below.[fn13]

The First Circuit's reliance on this statistical evidence
to establish proof of discrimination is irreconcilable with
this Court's decision in Wards Cove v. Atonio, 490 U.S.
642 (1989). Title VII prohibits "discrimination," like

========================
=     End Page 18      =
========================

Title IX, "on the basis of sex." 42 U.S.C. § 2000e-2(a).
ln Wards Cove, the court of appeals upheld a finding of
"discrimination" under Title VII based upon evidence that
the percentage of non-white workers filling unskilled posi-
tions in an employer's cannery operations was substan-
tially higher than the percentage of non-white workers fill-
ing unskilled positions in the employer's non-cannery op-
erations. Id. at 649-50. This Court reversed, finding that
the Court of Appeals "fundamentally misconceived the
role of statistics," because the statistical imbalance
identified by the court of appeals could have been attri-
butable to differing levels of interest between the groups
instead of discriminatory barriers. Id. at 650 & n.5, 654.

This Court explained that statistical proof of discrimina-
tion in an employer's workforce must be based on a com-
parison with the racial composition of the pool of quali-
fied applicants-- those individuals who are willing and
able to compete for the opportunities at issue. Id. at 652-
54.[fn14] The "pool of cannery workers" could not be used
as a "surrogate for the class of qualified job applicants"
because "it contains many persons who have not (and
would not) be noncannery job applicants." Id. at 654.
See also City of Richmond v. J.A. Croson Co., 488 U.S.
469, 509 (1989) (emphasizing that an "inference of dis-
criminatory exclusion" can only be made where there is
"a significant statistical disparity" between the "number
of qualified minority contractors willing and able to per-
form a particular service and the number of such con-
ractors actually engaged [in that service]") (emphasis
added). This Court emphasized in Wards Cove that a
"selection mechanism" that awarded opportunities to non-
white employees proportional to their interest in those

========================
=     End Page 19      =
========================

opportunities was probably not discriminatory. 490 U.S.
at 653.

The First Circuit, however, did not follow this Court's
clear guidance, and committed precisely the same error as
the court of appeals in Wards Cove. The First Circuit
insisted that the relevant population for comparative pur-
poses was the entire student body, even though this group
unquestionably "contains many persons who have not
(and would not) be . . . applicants" for varsity opportuni-
ties. Wards Cove, 490 U.S. at 654. By adherence to this
analysis, the court impermissibly used a gender "imbal-
ance" in one "segment" of the university's programs to
establish a presumption of discrimination' Id. at 653.
And it further compounded its error by refusing to permit
Brown to rebut that presumption through evidence which
established that the gender ratio of "selected applicants"
for Brown's athletic program "is not significantly less"
than the gender ratio of "qualified applicants"--the very
evidence that this Court said was strongly probative of a
nondiscriminatory "selection mechanism." Id. at 653.
There was accordingly no basis for the First Circuit's con-
clusion that an "empirical[] demonstrat[ion] that ...
women have less interest in sports" could not "justify pro-
viding fewer athletics opportunities for women than for
men," because that is the natural and permissible result
of equal opportunity as defined by this Court in Wards
Cove. Cohen IV, App. at 42a.

B. The First Circuit's Conclusion That Section 1681
   Obligates Universities To Afford Preferential Treat-
   ment To Women Conflicts With This Court's Inter-
   pretation Of The Same Language In Title VII.

In Title IX, Congress directed universities receiving
federal funds to eliminate "discrimination" in their pro-
grams, but it did not direct them to achieve gender bal-
ance in those programs, or to ensure that interested women
would have a greater chance of participating in varsity
athletics than interested men. Section 1681 (b) could not
be more explicit on this issue, as it tells courts that "noth-

========================
=     End Page 20      =
========================

ing" in the language of Section 1681 (a) "shall be inter-
preted" to "require" any institution to "grant preferential
or disparate treatment to the members of one sex" to rec-
tify "an imbalance." 20 U.S.C. § 1681 (b) (emphasis
added). The evidentiary standards adopted by the First
Circuit, however, conflict with the clear command of that
language and this Court's Title VII precedents.

First, the Court of Appeals read this language to per-
mit the use of a quota as a "safe harbor" that would pre-
vent imposition of liability. Cohen II, App. at 181a. The
Court emphasized that this rule afforded universities an
easy way to "stay on the sunny side of Title IX" because
they could simply implement a quota that achieves "gender
parity" with its student body. Id. This Court, how-
ever, has already read the same language in Section
703(j) of Title VII, 42 U.S.C. 2000e-2(j), to prohibit
the adoption of evidentiary standards that encourage de-
fendants to institute quotas on a voluntary basis.[fn15] Wards
Cove, 490 U.S. at 652 (rejecting reliance on statistical
proof that would make quotas the only "practicable op-
tion" for defendants). See also Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 993-94 (1988) (plurality
opinion) (adoption of legal rules that encourage the use
of quotas to avoid expensive litigation would be "contrary
to Congress' clearly expressed intent" in Section 703(j)).

Second, the First Circuit's rule does not merely encour-
age the imposition of preferential quotas, as Chief Judge
Torruella persuasively explained, it requires it. Cohen IV,
App. at 78-79a. Compelling Brown to reserve up to 51%
of its athletic opportunities for some 40% of the pool of
qualified candidates--the goal Brown must ultimately meet
to escape liability under the First Circuit's interpretation--
is surely "preferential . . . treatment" to eliminate an
"imbalance" within the ordinary meaning of Section
1681 (b). See, e.g., Wards Cove, 490 U.S. at 653 (an
evidentiary standard that infers discrimination based on

========================
=     End Page 21      =
========================

a statistical comparison with a pool that includes persons
who are not interested in the opportunities leads to prefer-
ential treatment); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 259 (1981) (evidentiary rule
that presumes discrimination when an employer hires a
male instead of an equally qualified female compels prefer-
ential treatment barred by Section 703(j)). See also
Croson, 488 U.S. at 493 (a set aside "denies certain
citizens the opportunity to compete for a fixed percent-
age")."[fn16] Yet this Court has repeatedly and emphatically
confirmed, when construing the same words in Section
703(j) of Title VII, that Congress "strongly opposed" the
use of "quotas or preferences" to "maintain [gender]
balance," and that the failure to make decisions with
reference to such measures does not provide a basis for
liability. Sheet Metal Workers Int'l Ass'n v. EEOC, 478
U.S. 421, 463 (1986) (Title VII does not "require an
employer to adopt quotas or preferences simply
because of a racial imbalance"); International Bhd. of
Teamsters v. United States, 431 U.S. 324, 340, 375 n.60
(1977) (Section 703(j) "makes clear that Title VIl
imposes no requirement that a work force mirror the
general population" and "does not require an employer
to grant preferential treatment" to "rectify an imbalance");
Burdine, 450 U.S. at 259 (Section 703(j) demonstrates
that Title VII does not "demand that an employer give
preferential treatment to minorities or women").

The First Circuit was required to follow those prece-
dents here. See, e.g., Oscar Mayer & Co. v. Evans, 441

========================
=     End Page 22      =
========================

U.S. 750, 754, 756 (1979) (relying on Title VII prece-
dent to construe section of ADEA that was "patterned
after and is virtually in haec verba" with section of Title
VII). It nevertheless sought to justify a divergent inter-
pretation of Section 1681 because gender has to be taken
into account when creating single sex teams, and courts
"must have some way of determining whether an institu-
tion complies with the mandate of Title IX." Cohen IV,
App. at 38a. But Congress obviously did not countenance
the imposition of mandatory quotas or other preferences
"as a way of determining" whether universities were dis-
criminating, and it did not exclude athletics from the
dictates of Section 1681 (b). In addition, the central
inquiry in ferreting out discrimination should not be
whether gender was considered--as here there is a legiti-
mate reason to do so--but whether "legitimate . . . prin-
ciples were subordinated to [gender]" when the operative
decisions were made. Cf. Bush v. Vera, 116 S. Ct. 1941,
1951 (1996) (plurality opinion). Under the First Cir-
cuit's rule, however, efforts to accommodate the interests
of all members of the qualified pool--a "legitimate prin-
ciple" of program design--must be "subordinated to
[gender]" in an effort to reach an arbitrary quota. Id.

In the end, the Court of Appeals seeks to justify its
rule based upon the view that women's relative lack of
interest in sports should not "become the instrument of
further discrimination against the underrepresented gen-
der." Cohen IV, App. at 42a. But there is no evidence
whatsoever that Congress determined that preferences are
needed to eliminate barriers to equal opportunity, and
the text of the Act leaves no doubt that Congress decided
not to mandate such a remedy. Women's participation in
athletics has increased dramatically without the First Cir-
cuit's rule, and the fact that women are not equally inter-
ested in devoting their time and energies to collegiate
athletics may be the product of legitimate choice instead
of discriminatory barriers. See, e.g., Croson, 488 U.S.
at 503 (finding that the "dearth of minority participation"

========================
=     End Page 23      =
========================

in the construction industry could be explained by "past
societal discrimination" as well as "entrepreneurial
choices"). Just as there is no reason to presume that men
would enroll in collegiate dance programs in equal num-
bers to women in the absence of discriminatory barriers,
there is no reason to presume an equal interest in athletics
when the evidence shows otherwise. Title IX was designed
to guarantee equal opportunity--not equal participation--
and the First Circuit's failure to follow the dictates of
Section 1681 (b) and this Court's precedents warrants
review by this Court.

C. The First Circuit's Conclusion That Congress Could
   Permissibly Require Universities To Establish
   Quotas To Remedy Perceived Societal Discrimina-
   tion Against Women Conflicts With This Court's
   Precedents Interpreting The Equal Protection
   Guarantee Of The Constitution

As this Court has frequently held, federal courts must
interpret statutes in a manner that avoids serious consti-
tutional questions. See, e.g., Edward J. DeBartolo Corp.
v. Florida Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988). In clear disregard of that
principle, the First Circuit chose an interpretation of Sec-
tion 1681 that presents serious constitutional questions
under circumstances where the plain meaning of that
section poses no constitutional problems whatsoever. In
addition, the First Circuit's conclusion that Congress could
constitutionally require universities to apportion athletic
opportunities based upon a "gender classification slanted
. . . in favor of women" because it has "broad powers
under the Fifth Amendment to remedy past discrimina-
tion" conflicts with this Court's precedents. Cohen II,
App. at 187a.[fn17]

The First Circuit failed to adhere to the standard
established by this Court in Mississippi Univ. for Women
v. Hogan, 458 U.S. 718 (1982). See also United States

========================
=     End Page 24      =
========================

v. Virginia, 116 S. Ct. 2264 (1996). In Hogan, this
Court held that Mississippi violated the Equal Protection
Clause of the Constitution because a "searching analysis"
revealed no "exceedingly persuasive justification" for an
admissions policy that denied men the opportunity to
compete for admission to a state nursing school. 458
U.S. at 724, 728. In this case, the Court did not conduct
a "searching inquiry" to determine whether Congress had
made any findings of past discrimination that would
supply an exceedingly persuasive justification for the im-
position of mandatory quotas or set asides that deny
male athletes an equal opportunity to participate in col-
legiate sports. Id. at 728. Instead, the First Circuit
thought it sufficient that "much testimony was heard with
respect to discrimination against women in higher educa-
tion" prior to the passage of Title IX. Cohen II, App. at
188a (quoting H.R. Rep. No. 554, 92nd Cong., 2nd Sess.
(1972), reprinted in 1972 U.S.C.C.A.N. 2462, 2511).
That does not constitute an "exceedingly persuasive justi-
fication" under this Court's precedents.

First, this Court emphasized in Hogan that a "compen-
satory purpose" is not sufficient to "justify an otherwise
discriminatory classification" unless "members of the
gender benefited by the classification actually suffer a
disadvantage related to the classification." 458 U.S. at
728. That standard was not satisfied in Hogan because
the women who received the benefits of the classification--
those who obtained admission to nursing school in pref-
erence to men--had not been "deprived of . . . oppor-
tunities" to "obtain training in the field of nursing." Id.
at 729. Similarly, in Orr v. Orr, 440 U.S. 268 (1979),
this Court found that a state law that denied alimony to
men could not be upheld as a remedy for economic dis-
crimination against women, because the beneficiaries
included women who had achieved financial success
despite societal discrimination. Id. at 282-83. As in
Hogan, this Court found that "a gender-based classifica-
tion which . . . generates additional benefits only for
those it has no reason to prefer cannot survive equal
protection scrutiny." Id.

========================
=     End Page 25      =
========================

The classification at issue fails for the same reason.
The Court of Appeals asserted that societal discrimination
had dampened women's interest in athletics. See Cohen
II, App. at 187a. But the direct beneficiaries of the pref-
erence it divined from Section 1681 are women who
already have the interest, ability, and training necessary to
compete in varsity sports at the collegiate level. Cohen
III, App. at 138a n.52; 163a; 165a (limiting relief to
those women with demonstrated ability to compete at the
varsity level). These women, like the women who stood
to benefit in Orr, managed to become accomplished ath-
letes despite any societal discrimination, and there is ac-
cordingly no "exceedingly persuasive justification" to af-
ford them an opportunity to compete in varsity athletics
in preference to similarly situated men.[fn18]

Second, this Court has declined to interpret the Equal
Protection Clause in a manner that "denies certain citizens
the opportunity to compete" for the full universe of
opportunities provided by a program based on a "gen-
eralized assertion that there has been past discrimination"
in society that may have contributed to a statistical imbal-
ance. See Croson, 488 U.S. at 493, 498. See also Wygant
v. Jackson Bd. of Education, 476 U.S. 267, 274 (1986)
(reversing decision upholding a layoff policy that gave
minorities a preference to "alleviate the effects of societal
discrimination"); Bakke, 438 U.S. at 307. As this Court
found in Croson, there is no compelling interest for
"apportioning . . . opportunities on the basis of race"

========================
=     End Page 26      =
========================

because "race should be irrelevant to personal opportunity
and achievement," and it would contravene the purposes
of a "constitutional provision whose central command is
equality" to give "shifting preferences based on inherently
unmeasurable claims of past wrongs." 488 U.S. at 505-06.

Gender classifications do not have to be supported by
a "compelling interest." Id. But this Court's precedents
leave no room for doubt that there is no "exceedingly
persuasive justification," Hogan, 458 U.S. at 724, for
compelling universities to "apportion[] [athletic] oppor-
tunities on the basis of [gender]" to redress "inherently
unmeasureable claims of past wrongs." Croson, 488 U.S.
at 505-06. See also Johnson v. Transp. Agency, 480
U.S. 616, 638, 630 n.8 (1987) (upholding a public
employer's decision to rectify an extreme gender imbalance
through voluntary hiring preferences because, inter alia,
gender was just "one of numerous factors [taken] into
account" and there is a "fundamental difference between
volitional private behavior and the exercise of coercion
by the State").

II. THE PETITION PRESENTS ISSUES OF EXCEP-
    TIONAL IMPORTANCE THAT WARRANT RESO-
    LUTION BY THE COURT AT THIS TIME

A. Compliance With The Affirmative Action Obliga-
   tions Imposed By The Prevailing Interpretation Of
   Title IX Will Have A Profound And Detrimental
   Impact On Programs At Virtually Every University
   In America

This case does not concern the Title IX problems of
one university in Rhode Island. The issues presented here
have wide-ranging impact on countless colleges across
America. As the First Circuit acknowledged, it is "un-
likely" that many athletic programs at coeducational uni-
versities "reflect the gender balance of their student
bodies." Cohen II, App. at 182a. See also infra at n.19.
Virtually every institution in the country must now do
what Brown has been ordered to do: find the funds neces-

========================
=     End Page 27      =
========================

sary to continue expanding women's teams, or eliminate
opportunities for men. Failure to restructure athletic pro-
grams in an effort to achieve gender parity exposes vir-
tually all academic institutions to expensive litigation,
liability, and the loss of federal funding.

Nor does this case simply concern unwarranted regula-
tory intrusion into the affairs of academic institutions.
The rule of law that has been imposed also undermines
the congressional intent to protect the "overrepresented"
gender from the competitive consequences of mandatory
preferences. As stated by the plurality in Watson, it is
"perverse" to have "quotas and preferential treatment
become the only . . . means of avoiding expensive litiga-
tion and potentially catastrophic liability" when Congress
"clearly and emphatically expressed its intent" to pro-
hibit compelled preferences. 487 U.S. at 993.

There is also no need to speculate whether this rule
will have that impact. The press has already been filled
with reports of colleges and universities cutting men's
varsity programs to meet the requirements of this mis-
guided interpretation of Title IX. As one article reported
last year, UCLA discontinued its men's swimming and div-
ing team, which had produced 22 Olympic medalists, in-
cluding 13 golds. See Jessica Gavora, Quota System Hurts
Team, USA Today, July 23, 1996, at 14A.[fn19] Universities

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=     End Page 28      =
========================

that dismantle men's athletic programs to comply with
the standards at issue cannot simply turn back the clock
when those standards are later found to conflict with
Title IX. It takes years to build a successful program, and
those programs should not be sacrificed to the impermis-
sible affirmative action mandate of the lower courts.

B. This Court Should Not Postpone Review Pending
   Further Consideration By The Courts Of Appeals

Many circuits have not had an opportunity to consider
the questions at issue in this case. Under the circum-
stances presented, however, there is no reason for this
Court to await further review by the lower courts.[fn20] First,
there is essentially no prospect that the erroneous rule of
law adopted by the First Circuit will be abandoned with-
out intervention by this Court. Even if another circuit
decides the issue correctly, there is no reason to believe
that the First Circuit would change the views it reached
in two voluminous opinions after full briefing of the
issues. In addition, OCR's decision to adopt and enforce
the views of the Cohen courts in its Clarification Memo-

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=     End Page 29      =
========================

random of last year further diminishes the prospect that
the courts of appeals will eventually abandon the Cohen
interpretation.

Second, it is unlikely that future cases would present a
better record for consideration of these important ques-
tions. Brown submitted extensive evidence concerning the
allocation of athletic opportunities, and preserved the legal
arguments appropriate for this Court's consideration. Both
sides of the issues were examined thoroughly in the two
Cohen opinions and the dissent of Chief Judge Torruella.
If this Court denies review here, there is in fact a risk
that other universities may be reluctant to litigate the
issues in light of the expense, the precedential force
of the Cohen opinions, and the threat of enforcement
actions posed by the OCR interpretation. There is accord-
ingly no benefit to postponing review now.[fn21] And the
harm caused by permitting the lower courts' distortion of
Title IX to stand is both substantial and irreparable.

CONCLUSION

For the reasons set forth, the petition for certiorari
should be granted.

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=     End Page 30      =
========================

                          Respectfully submitted,

BEVERLY E. LEDBETTER      MAUREEN E. MAHONEY
 General Counsel           Counsel of Record
Brown University          MINH N. VU
One Prospect Street       LATHAM & WATKINS
101 University Hall       1001 Pennsylvania Avenue, N.W.
Providence, RI 02912      Suite 1300
(401) 863-1104            Washington, D.C. 20004
                          (202) 637-2200

                          JULIUS C. MICHAELSON
                          JEFFREY S. MICHAELSON
                          MICHAELSON, MICHAELSON &
                            ZURIER
                          321 South Main Street
                          Providence, RI 02903
                          (401) 277-9300
                          Counsel for Petitioners,
                             Brown University, et al.




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