Gender Equity Title IX Battle for Brown Reemerges, Triggered By Sports Cut -- 20 Year Legacy
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Gender Equity Title IX Battle for Brown Reemerges, Triggered By Sports Cut -- 20 Year Legacy
The new litigation is caused by the recent decision to cut eleven sports at Brown and then to reinstate men's’ track and cross country. Men's track has a significant number of Black students participating.
Latest Legal Battle
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTIn a motion filed with the federal district court of Rhode Island, the original legal representatives for Amy Cohen and the other women athletes who brought the original suit against Brown in 1992, say the University violated the terms of their agreement when it announced the elimination of five women’s varsity athletic teams, resulting in non-compliance with the court-ordered requirement that “intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.”
According to the ACLU release on the filing, the cuts announced by Brown “will eliminate participation opportunities for twice as many women as for men,” also observing that “throughout the last 22 years of operation of the Joint Agreement, not once have women athletes at Brown ever reached their proportion within the undergraduate enrollment and at all times have remained the ‘underrepresented’ gender.”
Brown claims it will comply with the original agreement, according to the ACLU, in part by adding co-ed and women’s varsity sailing teams to next year’s lineup.
However, in this recent filing, cooperating attorneys from Public Justice and the American Civil Liberties Union of Rhode Island noted that, under the agreement, Brown cannot achieve reliance based on teams that do not exist – and for which participation rates are not yet known.
“We are truly disappointed in the callous manner in which Brown University has treated its varsity athletes, both women and men, in abruptly, and without warning, informing them that their opportunity to continue their athletic career at the highest collegiate level is over,” said Lynette Labinger, lead class counsel in the original lawsuit and cooperating counsel for the ACLU of Rhode Island. “For the women athletes, Brown has once again displayed a lack of commitment—as opposed to lip service—to gender equity and to its obligations, not only to its students, but to the Court.”
Brown Says It Has “Exemplary Track Record”
“Brown has an exemplary track record of providing varsity athletic opportunities to women, and in fact, our record stands near the top among our peers. We do not expect the changes we have made in the lineup of our varsity programs to alter this exemplary record of commitment to gender equity in athletics," said Brian Clark, spokesman for the University.
Brown announced in May a complete reorganization of the athletic department.
"The plaintiff, in this case, is taking the unusual step of asking Brown to see into the future to provide data on rosters for the coming year, and is doing this at a time when a pandemic has created tremendous and unprecedented uncertainty around college enrollments and the status of athletic competition for the fall season. Today’s motion is a preemptive legal action asserting a hypothetical violation that has not taken place — and Brown would not allow this speculative scenario to emerge in future athletic seasons," said Clark.
"In every year since the Cohen lawsuit was settled by a joint agreement in 1998, Brown has been committed to meeting its federal Title IX gender equity requirement in athletics and has reported annually to the Cohen vs. Brown plaintiffs' attorney concerning our compliance efforts. Having closely assessed roster sizes for our revised lineup of varsity teams, we are confident that the proportion of women athletes will be in compliance with both the Cohen joint agreement and Title IX for the upcoming athletic seasons. This is assuming that the COVID-19 pandemic does not result in a cancellation of athletics in the coming academic year," added Clark.
“More than two decades after first being called out for blatant discrimination against its women athletes, Brown University is once again using fuzzy math, and counting non-existent athletes, in order to avoid equality and accountability in its athletics programs,” said Leslie Brueckner, Senior Attorney for Public Justice, an organization that was counsel in the original lawsuit. “Time has not diminished the intent of the law and, if anything, has only underscored both the importance and impact of ensuring gender equality in college athletics. Brown must take concrete steps, and count real rather than ‘potential’ athletic participants, to immediately live up to its end of our agreement. Anything short of that is public posturing and empty conjecture that accomplishes nothing for real students and athletes.”
Under the existing agreement, Brown is obligated to comply with Title IX’s “Three-Part Test” for measuring whether a school’s elimination of a women’s sports teams constitutes gender discrimination in violation of federal law. That test prohibits the elimination of any viable woman’s team unless “participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments,” a measure the legal team says cannot be met with Brown’s current proposal and its plan to count potential, rather than actual, female student-athletes. Under the agreement, Brown is only allowed to count athletes “whose name appears on the roster for that sport,” which is impossible when those rosters do not currently exist. “We cannot afford to wait to see,” today’s filing notes, “if Brown’s projections are accurate enough without devastating consequences to real individuals who are being denied their chance to compete.”
Brown's Clark says, "The University has a strong case to make and will respond as appropriate through the legal process. Brown’s commitment to gender equity in athletics is clear. Our athletics program sustains our steadfast commitment to providing equal participation opportunities in varsity athletics to women and men. Not only is this the law, it is also deeply embedded in Brown’s values."
“Long ago, Brown University made a commitment to future generations of students that it would provide an equal playing field for all student-athletes,” said Anna Susini, Captain of the Women’s Fencing Team at Brown. “That commitment, and the school’s outstanding Fencing program, were key reasons I chose to attend Brown. Now, its betrayal of that promise has left countless women athletes, including me, without the opportunities we believed we could count on finding here. As it did more than twenty years ago, the University once again has a chance to fix this imbalance. I hope the stand my fellow athletes and I are taking will convince it to do so.”
“Brown University already admitted it’s violating the agreement,” said co-counsel Arthur H. Bryant of Bailey & Glasser, LLP, who originally prosecuted the case as then-Executive Director of Public Justice. “On May 28, 2020, the school announced it was cutting 6 men’s teams and 5 women’s teams, eliminating more men’s opportunities than women’s to comply with the agreement and Title IX. On June 6, Brown President Christina Paxson wrote the entire Brown Community that she couldn’t reinstate three men’s teams – track, field, and cross-country – because, if she did so, ‘Brown would not be in compliance with our obligations under the settlement agreement.’ On June 10, Brown reinstated those men’s teams anyway. But President Paxson already told everyone the truth.”
Jill Zwagerman of Newkirk Zwagerman from Des Moines, Iowa who also serves as co-counsel in the suit along with Lori Bullock, said “It is really disturbing how after more than 20 years Brown continues to disregard its female athletes and dispose of them without a second thought. You would think that they would have learned their lesson by now, but their arrogance continues by denying women opportunities in sports that it so freely provides to males.”
ACLU of Rhode Island executive Steven Brown added: “Title IX was enacted 48 years ago, but today’s filing demonstrates how important and relevant it remains as a tool to ensure gender equity almost a half-century later.”