Brown University is no stranger to Title IX, but the institution’s long legal fight over the law took a new turn this summer. A series of internal emails made public suggest the Ivy League institution could be using recently announced athletics cuts to annul a decades-old consent decree to adhere to the college sports gender-equity requirements of the law.
The emails, disclosed on Aug. 27, were part of a court brief in ongoing litigation questioning the legality—and Title IX complicity—of the Bears’ planned cuts. In internal discussions, Chancellor Samuel Mencoff called his university’s long-standing consent decree to comply with Title IX a “pestilential thing” he wants to “kill.” He also expressed a desire to redirect current outrage about the cuts to the equal-opportunity mandate itself.
“The argument would be that the consent decree is forcing us to eliminate these sports, and the court would then be bombarded with emails and calls as we are now,” Mencoff wrote in an email in June.
The decree was the result of a lengthy lawsuit brought in 1992 by former Brown gymnastics captain Amy Cohen after the university decided a year earlier to demote four of its 31 varsity teams to club sports. Women’s gymnastics and volleyball, along with men’s golf and water polo, were axed in the cost-saving measure.
Cohen’s Title IX lawsuit argued that the reduction of the two women’s teams was discriminatory and prevented female undergrads from obtaining equivalent opportunities. Cohen ultimately prevailed, showing that after the four-team demotion, women—who made up 48% of undergrads at Brown—only comprised 37% of varsity athletes.
The school was unable to establish compliance with Title IX under alternative measures by expanding programs for female athletes or by adequately meeting interest among women in athletic participation.
The litigation was resolved in part by Brown agreeing in 1998 to provide an annual report to Cohen’s attorneys on its Title IX compliance during the preceding academic year. Per this agreement, the gender parity in Brown varsity sports must be within 2.25% of each gender’s percentage in the undergrad enrollment for the same year.
Brown’s May announcement reignited the Title IX controversy.
The school declared that, effective for the 2020-21 academic year, 11 varsity teams were demoted to club status. Six were men’s teams: fencing, golf, squash, track and field and cross country—which count as three teams—and five were women’s teams: equestrian, fencing, golf, skiing and squash. As part of the shakeup, the school also announced that coed sailing and women’s sailing would be promoted to varsity status.
Brown insisted that these changes were not reactive to the COVID-19 pandemic. The school instead said they were the fruits of a multi-month assessment that relied on a “data-driven review” and part of the “Excellence in Brown Athletics Initiative.” The school weighed “such factors as the existing strengths of each team; current roster sizes; and the quality of facilities available for practice and competition.” Brown president Christina Paxson further explained that the 2.25% requirement played a significant role in the school’s decision-making—and that the school was in full compliance with the 1998 agreement.
Three days later, Paxon backtracked. She announced that men’s track and field and cross country would be spared. She cited hearing “deeply personal stories” from athletes and how she learned that cutting the teams would “have real and lasting implications for efforts to build and sustain diverse and inclusive communities for our students at Brown, and particularly our community of black students and alumni.” The letter went on to stress that minority students would be hurt most by the elimination of those three teams.
A group of attorneys from Public Justice and the ACLU of Rhode Island identified a problem with Brown’s revised plan: The plan appears likely to violate the 2.25% requirement and thus cause Brown to breach the 1998 agreement.
To that end, the attorneys requested documentation from Brown about demographic data for the 2020-21 year. Brown refused on grounds that it is not yet available, saying that fall enrollment can change over a summer due to waitlists and changes in student plans. Brown instead shared 2019-20 data, which cites women comprising 52.3% of Brown undergrads. The ACLU and Public Justice attorneys told Sportico they have “accepted the figures Brown gave for 2019-20 and accepted that it puts them within compliance” for last year.
Those same attorneys insist that unless the male/female student ratio changes in 2020-21, Brown can’t conceivably comply with the 2.25% requirement given the cuts. They say that the disparity projects to be 4.4%, at least based on 2019-20 enrollment data. On June 29, they filed a motion in Rhode Island federal court and named specific members of the women’s teams, arguing that these women would lose “genuine and viable opportunities.” They seek a court order that would block Brown from eliminating the women’s teams.
“We as the athletes never wanted to be in a suit against Brown, but part of the settlement from this 1998 case was that these attorneys had a job to monitor Brown’s compliance with Title IX from year to year,” said Lauren Reischer, current senior and captain of the now-cut equestrian team.
Her teammate, Daphne Maniatis, put it more bluntly: “It feels as though Brown is going to great lengths to skirt the Title IX obligations as much as they can at the expense of their students to improve their winning record or whatever it is they’re trying to accomplish.”
Attorneys from Brown insist that Public Justice and ACLU attorneys have knowingly misconstrued the 1998 agreement. “The agreement,” Brown attorneys wrote in a court filing obtained by Sportico, “does not provide any mechanism for plaintiffs to assert a prospective violation for the 2020-21 academic year.” As worded, the agreement details Brown providing a report each August on the preceding academic year.
“It’s a ridiculous argument. Their theory is that if they were to publicly announce that they were dropping every single women’s team, they couldn’t be held accountable for violating Title IX until the end of this coming academic year—next August—because we couldn’t prove by measuring the participation rates that, in fact, there were unequal opportunities for women,” said attorney Arthur Bryant of Bailey Glasser LLP. Bryant is the former chairman of Public Justice and worked on the initial Brown case in the 1990s. “We can look at the numbers. We have from the last 22 years and see that with this decision, they are in violation. They said they were going to be in violation if they did this, then they did it consciously.”
Bryant said the estimated numbers Brown provided the attorneys for 2020-21 were “woefully out of kilter” and included the women’s and coed sailing participants “even though those teams don’t even exist yet.”
Brown’s attorneys also stress the impact of the pandemic. The Ivy League has canceled the fall season. Neither male nor female undergrads are playing competitive sports contests at Brown. As colleges wrestle with an infectious disease pandemic that has no known end date, it’s unclear when Bears games will resume. The university has also shifted from the traditional fall/spring two-semester model to a three-term model for the 2020-21 academic year and implemented measures to have “fewer students and less density on campus.”
“Against this backdrop,” Brown’s attorneys write, “it makes little sense to attempt to apply the 1998 agreement to the 2020-21 academic year, since the data points that the agreement presumes and the metrics it imposes do not sensibly map onto the current extraordinary circumstances.”
The university is also accused of using the current moment to try to eliminate the decree entirely. In an email sent on June 2, Paxson wrote: “This might be the perfect moment to petition the court to get us out of this agreement, which would let us restore men’s track, field and [cross country] and still remain in compliance with Title IX.”
Mencoff suggested using the moment “where anger and frustration, especially from track and squash, are intense and building to go after the consent decree once and for all?”
“They made a conscious decision to violate the consent decree,” Bryant added. “Brown is sending the message it doesn’t care about its women athletes or Title IX. Even worse, the message it is sending about integrity and respect for the law is truly sad. They are trying to turn the anger over their mistreatment of black athletes on the men’s track, field and cross country teams against their women athletes, Title IX and the court. That’s reprehensible.”
The case is before Chief Judge John J. McConnell, Jr. Public Justice and ACLU attorneys have petitioned for an expedited review, while attorneys for Brown insist that there is no rush—especially without sports being played.