Under Brown's proposed plan, women would have constituted 49.2 percent of all athletes if men participated at their maximum levels and women at their minimums. That would have reduced the difference between athletic and student body gender ratios to about 3 percent, well within the 7-percent difference that has been accepted by the government. Pettine rejected that approach and rejected the proposal to provide additional squads on existing women's teams. Donor-funded teams must be counted, the court said. Donor-funded teams, it appears, can be counted only against men, but not for women.
Similar inconsistencies persist with regard to counting junior varsity players.
Brown's plan also included a second phase. If measures to increase the participation of women and limit participation by men were not sufficient to meet the court's requirements, Brown planned to eliminate one or more men's teams. Our compliance plan attempted to satisfy Pettine's order within limited budgetary and physical resources - including, if absolutely unavoidable, the elimination of one or more men's teams in addition to capping team sizes. Now, by judicial fiat, womens' water polo, skiing, fencing and gymnastics teams have risen past all other priorities including undergraduate scholarship, faculty salaries and libraries. Our resources cannot support ever-increasing numbers of sports.