Bombshell emails released in a lawsuit accusing Brown University of violating a decades-old settlement agreement to provide gender equity in sports reveal a desire by school officials to “kill this pestilential thing” in a way that wouldn’t rile up “the [Amy] Cohens of the world,” according to a legal filing by the ACLU and Public Justice.
A series of emails released after U.S. District Court Chief Judge John J. McConnell Jr. ordered the “quick and full” disclosure by Brown of all documents related to its decision to eliminate five women’s varsity teams indicate a deliberate effort by the Ivy League school to undermine and ultimately dismantle a 1998 consent decree requiring the school to comply with Title IX.
That settlement in the landmark Title IX case Cohen v. Brown University has been credited with helping to even the playing field nationwide for men’s and women’s college sports.
Brown University President Christina Paxson wrote in a June 2 email: “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.”
She continued a week letter in an email to Chancellor Samuel Mencoff and others: “Our concern is that this could rile up the Cohens of the world and put us in a defensive posture. We need space to work out a rock-solid legal strategy and then go on the offensive.”
Mencoff made a suggestion: “But here’s an idea. Could we use this moment, where anger and frustration, especially from track and squash, are intense and building to go after the consent decree once and for all? Could we channel all this emotion away from anger at Brown to anger at the court and kill this pestilential thing? The argument would be that the consent decree is forcing is to eliminate these sports, and the court would then be bombarded with emails and calls as we are now. We would be aligned then with all who oppose us now.”
In late May, Brown announced it would eliminate 11 varsity sports ahead of the 2020-21 academic year. Men’s and women’s fencing, men’s and women’s golf, women’s skiing, men’s and women’s squash, women’s equestrian, men’s indoor track and field, men’s outdoor track and field and men’s cross country originally were going to transition to club status.
A month later, the school reversed course on men’s track, field and cross-country, reinstating the programs.
But the other cuts remain in place, part of the school’s “Excellence in Brown Athletics Initiative,” which school officials say will streamline sports programs and make them more competitive.
Public Justice and the ACLU of Rhode Island on June 29 asked the federal court to enforce the 1998 settlement agreement. Specifically, the organizations accused Brown of not complying with a court-ordered requirement to ensure that “intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.”
The parties are now asking McConnell to reinstate the women’s teams and to find Brown in contempt for its “outrageous” conduct.
“When we filed the motion to enforce the Court’s order in June, we expressed concern that Brown’s commitment to gender equity and its women athletes was insincere and simply window-dressing,” said Lynette Labinger, cooperating counsel for the ACLU of RI and the lead attorney in the 1992 suit brought by female athletes against Brown. “Through discovery, we learned the unfortunate truth: Brown does not care.
“Brown would rather dismantle the entire process that it claims prompted the downsizing than provide its women athletes — its own students -- the program required by law and by the Court’s order.”
“Brown University’s clear disdain for promoting gender equity in its athletic program is deeply disappointing,” Steven Brown, executive director of the state ACLU. “I am hopeful that the judicial system will hold the university accountable and vindicate the important goals underlying Title IX.”
Brown issued a strong response through spokesman Brian Clark.
“When neither the facts nor the law support their case, a party to a litigation sometimes resorts to rhetoric and invective. Today’s press release and accompanying documents in Cohen v. Brown exemplify that unfortunate approach, reflecting the continued efforts by plaintiffs’ counsel to use snippets from documents taken out of context to develop a public narrative in lieu of a viable legal claim. Brown has an exemplary record of providing varsity athletic opportunities to women, with a record that stands near the top among its peers,” Clark wrote in a statement.
Clark continued: “For decades, the University has met its obligations under Cohen — an agreement that established requirements not faced by any other institution of higher education in the country — annually reporting to the plaintiffs’ attorneys about compliance. At no time has anyone raised doubt about Brown’s commitment to complying with Title IX. The changes to the varsity roster lineup remain in compliance with Cohen, and if Brown’s varsity teams were able to compete this fall season, we would be in compliance for the upcoming academic year as well. We remain confident that the federal court judge, who, unlike plaintiffs, will apply the language of the consent decree and basic principles of contract law, will agree.”