By Ellen J. Staurowsky, Contributing Writer and Professor, Sport Management, Drexel University & Professor, Sports Media, Ithaca College, ejs95@drexel.edu
On May 28, 2020, in the midst of the COVID-19 pandemic, Brown University president Christina Paxson announced a plan to restructure its varsity athletic program by demoting 11 varsity teams (five women’s and six men’s) to club status and elevating two club teams (co-ed and women’s sailing) to varsity status (Paxson, 2020a). The decision to reduce the number of varsity teams offered from 38 to 29, which impacted approximately 165 athletes, was the outcome of work done by a committee comprised of alumni charged by Paxson to make recommendations to improve the overall competitiveness of the athletic department (Paxson, 2020a). The announcement of the program cuts drew considerable criticism on several fronts. First, the elimination of men’s cross country and track and field teams prompted immediate calls for reinstatement due to the negative impact the loss of those teams had on racial and sexual diversity. It also triggered several legal questions. One was whether Brown violated Rhode Island law by failing in its obligation to treat athletes and coaches honestly and in good faith. Another raised the question of whether the university’s plan violated its joint settlement agreement (Joint Agreement) with female athletes reached in 1998 after the University had previously attempted to cut women’s sports and was found to have violated Title IX in the process.
Brown’s Excellence Initiative to Reshape Athletics
The restructuring plan announced by President Paxson in May was a part of the Excellence in Brown Athletics Initiative which emphasized the strategic need to improve the competitive level of Brown’s varsity teams; to strengthen club sport offerings; and to provide equal athletic opportunities to women and men (Staff, 2020). While the timing coincided with the pandemic, Paxson dispelled perceptions that the program reductions were due to financial pressures. Rather, she pointed to a confidential external review of the program done in 2018-2019 conducted by outside consultants that found Brown ranked third in the nation in the number of varsity sports offered but struggled to maintain competitiveness (Paxson, 2020a; 2020b). During the decade between 2008 and 2018, Brown won only 2.8% of Ivy League titles.
Resources freed up by demoting teams to club status were to be redistributed within the athletic department for the purpose of right sizing team rosters and enhancing recruitment efforts. In effect, the effort was intended to increase the depth of talent on varsity teams and the infrastructure to support the varsity teams that survived the cuts.
Men’s Track and Field Organize A Social Media Protest and Win A Reversal
While the statements from President Paxson and Athletic Director Jack Hayes offered assurances that institutional commitments to diversity and inclusion were considered when the new plan was developed, how those decisions matched priorities became the focus of questions from athletes of demoted teams and their supporters. Members of the men’s cross country, indoor and outdoor track and field teams were so stunned by the rationale for the decision to cut their teams that they reportedly mobilized 700 alumni within hours of the announcement, garnering public support nationally (Reimer, 2020). Brown’s administration faced an uphill battle in publicly explaining why they had cut the second most racially diverse team on campus that also had four out gay athletes while saying that the program cuts were designed to foster greater diversity. As several commentators noted, the men’s track and field team roster had more Black athletes on it than the men’s sports of lacrosse, baseball, hockey, and crew combined (Dinkins, 2020; Reimer, 2020).
In response to requests for the University to reconsider the fate of men’s cross country and track and field (indoor and outdoor), the teams were reinstated. In explaining why the institution reversed course on the matter, Paxson wrote in a letter to the community on June 9, 2020 that “The original revised roster of varsity sports maintained Brown’s overall diversity in varsity athletics, but we now more fully appreciate the consequences of eliminating men’s track and field and cross country for black students in our community and among our extended community of black alumni” (Paxson, 2020c). She also explicitly mentioned that the primary reason for demoting men’s track and field was the need to remain compliant with the 1998 Title IX settlement. In describing the deliberations of the committee, she wrote “The committee realized that, in their judgment, the best way to restore competitiveness and meet the goal of reducing the number of teams overall was to eliminate a number of larger men’s teams”. Curiously, of the six men’s teams that were originally cut, four of them had the smallest number of participants on their rosters, with cross country at 18; fencing at 14; golf at 8; and squash at 12 (Brown University 2018-2019 Athletic Participation Numbers). Other men’s sports such as baseball, football, ice hockey, and lacrosse had roster sizes that ranged from 26 to 98 athletes.
Coalition of Brown Athletes Contest Legality of Brown’s Decision-Making Process
Among the objections raised about Brown’s efforts to downsize its varsity athletic program was the lack of transparency and secrecy of the deliberations. A coalition of athletes from the remaining affected sports of equestrian (women’s), fencing (men’s and women’s), golf (men’s and women’s), squash (men’s and women’s), and skiing (women’s) sought counsel with the law firm of Winston & Strawn. On June 18, 2020, they asked the University to immediately enter into discussions with them with the goal of reinstating their teams. They alleged that the University violated Rhode Island law by failing to engage honestly and in good faith in their dealings with the athletes, citing a process that misrepresented what was going on in the athletic department for months and denying athletes the opportunity to make fully informed decisions about their futures. According to the coalition’s attorney, Jeff Kessler, “Brown fell well short of this legal duty when it concealed the fact that it was planning, since at least January, on eliminating a number of its varsity teams even though it has repeatedly acknowledged it had no economic need to do so. The school waited until it was too late for the affected student athletes to transfer, and then took action so that their participation on varsity teams — a key part of their experience at Brown — would be ripped away” (Winston & Strawn, 2020).
Relevant to the concerns expressed by Brown athletes about the confidential nature of the review, the description of the review process as being similar to what would be done in terms of academic departments as mentioned by President Paxson in the May 28, 2020 press release warrants nuanced consideration. While academic units do undergo regular program reviews that typically include involvement from external experts, decisions relative to cutting programs, eliminating positions, or dramatically altering courses that are offered are subject to layers of internal scrutiny at the department, college, and university level. Brown’s Academic Program Review Guidelines and Procedures document available on the Office of the Provost website dated June of 2012 affirms this point. Thus, it would be highly irregular that a decision to cut an academic program and eliminate faculty positions would be announced without the prior knowledge of faculty in the department knowing about it, discussion with undergraduate students, or the opportunity to provide feedback before a final decision was made. Further, organizations such as the American Association of University Professors (AAUP) monitor how these kinds of reviews are done and provide guidance regarding best practices, including timeframes wherein faculty members whose positions might be terminated are given thirty days to review proposals and offer responses. Thus, the confidential nature of the decision-making in the process leading to the announcement of the athletic department’s excellence initiative departed from what would be found in other areas of the university, especially given the fact that these decisions were not being driven by financially exigent circumstances.
Brown’s Compliance with 1998 Title IX Lawsuit Settlement Agreement Questioned
In 1991, during an economic recession, Brown announced that it was making what appeared to be facially equal cuts to its athletic department, demoting two women’s sports and two men’s sports from university-funded to donor-funded status (Cohen v. Brown, 1992). Upon closer examination, those demotions resulted in a disparate impact on women athletes, effectively ensuring that the women’s sports — gymnastics and volleyball — would not survive. Existing inequities disadvantaging female athletes were further perpetuated by the athletic department’s decision to demote those two women’s teams. Despite appeals on the part of female athletes to reinstate their sports and remedy Brown’s discriminatory conduct, the University held to its plan, resulting in a lawsuit filed by then female gymnastic Amy Cohen on behalf of herself and a class of Brown female athletes (current and prospective) (Blumenthal, 2004; Cohen v. Brown, 1992). After years of litigation, Brown’s downsizing decision was found to be in violation of Title IX’s requirement to provide equal access to athletic participation opportunities and equitable treatment of female athletes in the form of resources and support. The end result was a settlement agreement reached in 1998 between the University and the plaintiffs requiring that athletic opportunities for female athletes be offered proportional to enrollment within certain stipulated percentages of variance depending on specified conditions.
In a motion filed by Amy Cohen and members of a certified class of women varsity athletes and potential athletes at Brown University on June 29, 2020, they allege that the University’s decision to cut five women’s teams, compounded by the decision to reinstate men’s track, field, and cross country, “…constitutes a gross and willful violation of the Joint Agreement to the immediate and irreparable harm of the class” (Cohen et al. v. Brown University et al., 2020, p. 3). The motion documents numerous concerns about lack of transparency and difficulty in obtaining reports, research, and data to adequately assess the University’s claims that their plan is in accordance with the Joint Agreement.
The plaintiffs request the Court to enforce the terms of the Joint Agreement and compel Brown to meet its obligations under Title IX and provide equal athletic opportunities for women athletes. They further request that Brown be prevented from eliminating any women’s varsity sport “…unless and until they are able to prove that the elimination of those teams will not violate the Court’s Judgement and the Joint Agreement” (Cohen et al. v. Brown University et al., 2020, p. 11). They also ask the Court to issue an order to Brown to demonstrate why they should not be held in civil contempt of the Judgement issued in October of 1998. Brown’s response to this motion is scheduled for July 9, 2020.
References
Blumenthal, K. (2004). Let me play: The story of Title IX. New York: Anteneum Books.
Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992). Retrieved from https://casetext.com/case/cohen-v-brown-university-3
Cohen v. Brown University. Joint Agreement. (1998). Retrieved from https://www.clearinghouse.net/chDocs/public/ED-RI-0001-0005.pdf
Dinkins, R. (2020, June 2). Brown University, If You Were Actually Serious About Racial Justice You Would Not Be Cutting the Men’s Track Team. Medium.com. Retrieved from https://medium.com/@dancingdinks/brown-university-if-you-were-actually-serious-about-racial-justice-you-would-not-be-cutting-the-d9e698b707e1
Office of the Provost. (2012). Academic program review: Guidelines and procedures. Providence, RI: Brown University. Retrieved from https://www.brown.edu/web/documents/provost/Academic-Program-Review-Handbook.pdf
Staff. (2020). Committee on excellence in athletics. Website. Providence, RI: Brown University. Retrieved from https://athletics-excellence.brown.edu/committee
Paxson, C. (2020a, May 26). Excellence initiative to reshape athletics at Brown. Press release. Providence, RI: Brown University. Retrieved from https://www.brown.edu/about/administration/president/statements/excellence-initiative-reshape-athletics-brown
Paxson, C. (2020b, June 6). Addressing Brown varsity sports decision. Press release. Providence, RI: Brown University. Retrieved from https://www.brown.edu/about/administration/president/statements/addressing-brown-varsity-sports-decisions
Paxson, C. (2020c, June 9). Letter from President Paxson: Track and field and cross country. Retrieved from https://www.brown.edu/news/2020-06-09/track
Reimer, A. (2020, June 11). How gay runners on Brown’s men’s track & field team helped lead fight for reinstatement. Outsports.com. Retrieved from https://www.outsports.com/2020/6/11/21287748/brown-track-field-reinstatement-gay-runners
Winston & Strawn. (2020, June 18). Coalition Of Student-Athletes Fight For Right To Compete At Brown University. Press release. Retrieved from https://www.prnewswire.com/news-releases/coalition-of-student-athletes-fight-for-right-to-compete-at-brown-university-301079792.html
