All NACDA Members
College Athletics in the Year 2000/Perspective #2
(Monday, June 19 - 9:25 a.m.)
Grant, thank you very much. We're going to hear now from Walter Connolly. Walter did his undergraduate work at the University of Georgetown and at the University of Denver, attending on a basketball scholarship. He's a graduate of the University of Southern California Law School. He's an attorney specializing in equal opportunity litigation in related areas, the author of several books. He has represented a number of universities including Brown University in it's current Title IX litigation.
Thank you, Mr. President. I am truly humbled to be at the podium today with the likes of Rev. Jackson, Coach Teaff, Patty Viverito, Gene Smith, who I've know for many years, as well as Coach Dooley. Humble is probably an understatement. Although, I've been humbled in the past, I've never been humbled as much as I was by the judge in the Brown University decision. It was neither psychologically good for me nor, do I believe that it is good for athletics in the United States, whether it be women's athletics or male athletics. I've been humbled in the past.
Many years ago, I was preparing for an oral argument in the highest court in the land and I was with someone at the time. I turned to them at the time and asked, "how many great orators do you know in this country?" They looked at me with deathly silence. I continued looking into the mirror and like many lawyers, the more I talked, the better I felt about myself. I asked, "how many great scholars do you know?" They looked at me and said, "one less than you think." Humility has come to me the hard way.
I'd like to talk today about two basic issues. What happened at Brown that I believe is wrong and what I see happening in terms of your universities and what you need to do in the next decade to make sure that your universities are in compliance with the laws of the land. I want people to understand, as a litigator, what I have done in my lifetime as chief trial counsel in 45 class actions and 500 other civil rights cases. The first thing I look at is whether or not the person I'm representing is engaging in discrimination, because if they are, I cannot represent them if they are. Brown University did not engage in discrimination. They did not.
The first thing I asked Brown University to do, when they hired me, after they had lost the preliminary injunction hearing, was to let me go in and audit their athletic department. I did not want to see one complaint from a women's participant on any team that they were being treated differently. I wanted to make sure that those issues were gone. I didn't have to listen to issues of sports bras versus athletic supporters being supplied by universities. I didn't want to listen to issues where facilities weren't as good or the times for practices weren't as good, or other issues weren't the same for women. So, we assured ourselves about Brown University and we settled all of the issues that related to any possible differences between the men's teams at Brown and the women's teams at Brown. Those issues were not on trial starting in the fall of 1994. The reason they weren't on trial was because Brown University had made the conscious decision to be in compliance with the law of the land and they were, in fact, in compliance with the law of the land. I'm going to talk today about what you have to do at your universities to make sure that no woman student-athlete or woman's coach has a complaint that the football team is being treated better than the women's cross country team or the women's basketball team is being treated better than the men's basketball team. There are things that can be done that have absolutely nothing to do with money that will put your university in that position.
What Brown University had was 18 sports which women participated in on an intercollegiate basis. Fifteen were university funded, three were donor funded and they also had three intercollegiate club teams that participated in an intercollegiate basis. The only sports that women did not have at Brown were badminton, bowling and equestrian. I asked how many of you in this room had those three sports at your university. The answer, from what I can tell, is that there are eight universities in America that have bowling, badminton and equestrian teams.
Women's playing fields were built and women participated in those playing fields in numbers that are three times the size of the national average of any Division I university. The average number of women's teams nationally is somewhere around eight in Division I. Brown had 18. The university went out of its way to examine what the interest rates were for men and women. We find that a university setting has diverse areas of interests. In drama, we find 65 percent of the participants are women. In the choral group, 60 percent; in dance, 90 percent. It's all because of differing interests.
We found, in the Brown case, that on a number of our teams, if you look at them, either on matched teams or historical numbers of participants in a given year, were not getting the same number of women participants that we've had in the past. If you just looked at the matched teams of men and women at Brown, there would be 85 more women participating. If you looked at the historically highest numbers of participants at Brown over the last 48 years, we would have 93 more women participating on the team. This isn't a football issue at Brown because we have 90 football players. All we have to do at Brown and at your university is to make sure that the numbers of participants are maintained.
If we look at just the travel squads sizes, we don't even have the full travel squad sizes on our teams at Brown for women. Yet, every single coach of a women's team testified, under oath, that they were being provided all of the resources they needed to recruit athletes. We had a coach of a men's track team, who's also the coach of the women's track team. In the last four years, prior to trial, 52 women were recruited to Brown and came to Brown, 51 men were recruited to Brown and came to Brown. In one year, we had 70 men on the team and 38 women. That is a significant issue. We are sitting here today, in the year 1995, with 37.9 percent of the high school graduates who participated in high school sports, women.
The drop out rate in high school for women between sophomore year in high school and senior year in high school is three times the rate of men. That is from a study that the Women's Sports Foundation did. This isn't a study done by Rush Limbaugh. This study shows that between the ages of 15 and 18, women are voluntarily dropping out of sports. When I started working on Title IX, I was convinced that the main reason the numbers were 37.9 percent was because of massive discrimination in high schools around our country. The data disagreed with that. There are studies, after studies, after studies that show that this is happening. Universities cannot be blamed for what is happening in the household of grade school children. Universities cannot be blamed for what is happening in high schools. Universities are dealt the hand that they are dealt and whomever shows up on campus is that which they are dealing with. The universities, such as Brown, that have 18 intercollegiate teams, are not predetermining the number of participants as the courts suggested. To the contrary, individual choice of the coaches, in some instances, or, of the participants in others, determines who stays and who goes.
In the back of the room, I have two documents for you to pick up at the end of this session. One is entitled, "How a College or University Can Best Comply With Title IX and Win a Lawsuit". This has some practical suggestions. I also have a paper I have done that looks at various interests and issues that are of concern to universities. For those of you who do not get a copy, please write to me and I'll get one to you.
Let me give you some quick and fast suggestions of what I maintain are the minimum things universities must do to comply with Title IX and to be prepared for the time that each of you who have a football program will be either audited or sued in the next five years. Until the U.S. Supreme Court makes a rational decision on what it means to have participation opportunities substantially proportionate to the student body ratios.
The first thing I tell universities to do is to audit your athletic program. There are two ways, as my father used to tell me to do things in life -- one is the right way and one is the wrong way. I would suggest to you to bring in experts that really understand the law and understand athletic programs. There is no excuse for an audit to take place in more than 30 to 45 days. I audited the University of Michigan's athletic department. We did it with great integrity. The coaches of the women's teams felt that they were listened to and their issues were looked at. When we walked out of an audit, it's very important to us to be able to do so with great integrity, because we don't want to be blamed for mistakes that we do not find.
The second thing you need to do is to develop a Title IX policy manual. I have gone around the country talking on this topic of training programs for the ACC, the Big Ten, the MAC Conference and other conferences. I hear stories as I go around talking to administrators at universities about existing differences. Per diems that are different for women's programs from men's programs and things of that nature. Develop a Title IX policy manual that goes through the program components and forces each coach to comply with the law. Make sure that the athletic directors and the assistant athletic directors are not in a position where they can make decisions for one person that are not going to be the same for others.
Develop a plan for future program expansion. One of the things I tell people is that we, at Brown, are litigating over the adding to the university funded status of fencing, women's water polo, skiing and maintaining the gymnastics team on a university funded basis. We ended up with eight people on our gymnastics team this year. We had seven people on the skiing team. We're fighting about that type of issue.
When I add a team today, I'm going to very careful what that team is, given the absolute movement towards statistical parody, which I think everyone who is of right mind and thinking, will say this is not the way we want to go. Men's athletics programs should become the friends and benefactors of the women's teams. I don't want to hear about football coaches complaining about gender equity. I don't want to hear about former athletic directors and former presidents of universities complaining about women's rights to be treated fairly and equally because they are entitled to under the law of the land.
Men's programs can do a lot. I sat down with the head basketball coach from a major university who has one of the most profitable and successful universities. He had a circumstance where the assistant women's coaches didn't have cars and his people had cars. I told him to go get those women cars because your program is not any better than their program. You can seek the assistance of the Office of Civil Rights if you're so inclined. Establish an in-house auditing committee and a monitoring committee and a grievance procedure so that individual student-athletes are not festering complaints within themselves. Be in a position to have someone who is objective who will investigate complaints. I'm not talking about whiny, petty, pouting that we see sometime, I'm talking about legitimate complaints. You need to have a decision-maker who is objective.
Establish evidence of financial duress. If you're going to be arguing that you can't add teams, you'd better be able to prove it financially. One of the problems we have in the university setting for those of us who represent universities around the country, like me, is that in times of financial duress, it is hard to say to the history department, the library or science department that you're going to cut them, but you're not going to cut athletics. You send the wrong message.
Establish an affirmative action plan for women and minorities in the athletic programs. It's crucial. Reverend Jackson may talk about that when he gets up to speak. Everyone of you are government contractors. You're required to have an affirmative action plan. The U.S. Supreme Court decision of a few days ago, has absolutely nothing to do, in my opinion, with government contractors and affirmative action plan.
One of the provisions in the OCR Manual is that participation rates and scholarships must be within a range of acceptability. Audit your participation rate. Determine the number of women who are on scholarships to make sure that you are not discriminating against them in terms of scholarships. Audit each of the program components. I don't have time to a take you through each of them, but I can tell you antecdotely stories about going into the men's basketball locker room at a university and seeing it filled with television sets, stereo equipment, new carpeting and beautiful new locker space. Then, going next door to the women's locker room and seeing it baron. Those days are gone. The days that the men's basketball team gets a practice when they want are gone. The days that the football team gets the indoor facility when they want during the fall and spring are gone. Some of you may find that hard to swallow because you believe a certain sport generates more revenues than others. You are going to have to understand that there's a way to work out an accommodation between the men's programs and the women's programs that does absolutely no violence to the men's programs.
You have to determine what participation opportunities exist on your existing women's teams. I'm afraid that we're now at the point in our life that you're going to have to go to the coaches of the women's teams and say, it is no longer acceptable to have nine women on the volleyball team. It is no longer acceptable to have 12 women on the softball team. If I've got, on a national average, 19 ½ men playing volleyball and I've got a national average of 12 ½ women on a volleyball team, that doesn't make sense. At Brown University, if I just look at what the coaches testified to, what they could have on their team, given their existing resources, there would have been 106 more women participating. Indeed, it isn't because of impermissible recruitment. In the surveys we did at Brown, 2,500 women representing the four classes that were in school at Brown last year, said they wanted to play intercollegiate sports. There is no excuse to not have all of the spots filled. You, as athletic administrators, I'm afraid, are now going to be put to the task of making sure that those spots are filled. If a man is going to be allowed to sit at the end of the football bench, as they did for Coach Teaff or Coach Dooley, or others, and never get into a game in four years, we cannot be heard that we have to add a bowling team, a badminton team or an equestrian because we can't get the participants to come forward and stay on the teams that we presently have.
You have an obligation to sit down with your coaches. The biggest problem that I've seen in representing universities from around the country, is that there is no one way for counting athletes. I can guarantee you that if I go into any one of your universities and look at the number of people participating on the existing teams at the end of the year, I will have four or five different numbers, depending on when you counted. One of the things you must do is come up with a single way to count athletes because the Office of Civil Rights is going to want to hear about it and a court may want to hear about it. They can't be a moving target.
I'm afraid, Coach Teaff, that we at Brown, are now, if this case continues in it's present format, to cap the sizes of men's teams. There is no other alternative. We are no longer going to allow the coach of the men's track team to have 70 male participants and 38 women participants because of the statistical follies we seem to be pursuing. We're going to require that women's coaches have a minimum number of athletes on each of their teams. There aren't going to be any excuses for that. They are going to be provided the resources to generate those numbers. One of the things that the Office of Civil Rights tells us under the third prong of the effective accommodation test is to look at interest. Donna Lopiano, in 1976, wrote an article and testified about it in the Brown case, said, "look at interest for both men and women." That is one of the things we have to get a better understanding of. We have done it at Brown by multiple surveys. We've done it by looking at high school participation rates, regionally and nationally. We've looked at club and intramural participation rates, all of which the U.S. government has told us to do. All of which suggest unrebutted, uncontroverted, that there are indeed different interests in athletics as there are different interests in drama, choral, dance and major after major after major on a university campus.
I'm getting the hook, and rightfully so. One of the issues at Brown was the issue of program expansion. Brown University in the 1970s, was at the forefront of the class. The absurdity of saying that you have to have program expansion into 1995 when you are ahead of everyone else in 1978, 1980 and 1982, makes no sense. From the inception of women's programs at Brown, in 1972 to 1982, they added 17 women's teams. In 1982, they added women's track outdoor team. From 1985 to 1995, the women's participation rates at Brown have gone from 33 percent to 44 percent. The national average is somewhere between 30 and 35 percent. If we could just get the people to come out for the existing teams, we'd have over 50 percent participation.
Brown University eliminated six men's teams, five JV teams and men's freshmen football in the last four years. They reduced the status of two women's teams. In 1992-93, when they made the decision about gymnastics and volleyball that instigated this litigation, they reduced the status for the two women's teams from university funded to donor funded. They have now maintained the status quo ante for the volleyball team. I would not eliminate a women's team in this environment today. I would only add women's teams that make a lot of sense from a statistical standpoint. That is an unfortunate thing.
A university in this country is getting badmouthed for what they've done for women. Once you've done what I have told you to do, you ought to be able to stand proud and talk about it so that women know that they are being treated properly and fairly.
One of the things I found in certain universities is that there is substantial jealousy between the non-revenue sports and the revenue sports. There was a suggestion in the Brown case, that if coaches would support the plaintiffs in Brown, somehow, that would help their status within the university context. To the contrary, what has happened is all the men's teams now are going to have the size of their squads capped. We're not going to, hopefully, have to eliminate any men's teams and we're now in a set of circumstances where what we've done in Title IX is unfortunate. We have pitted groups against groups. That was never intended and I think it's unfortunate. It's something that should have been avoided at all costs.
Thank you very much for your time.