By Ellen J. Staurowsky, Ed.D., Contributing Writer & Professor, Sport Management, Drexel University & Professor, Sports Media, Ithaca College ejs95@drexel.edu
In May of 2020, Brown University (BU) announced an initiative to revitalize its athletics program through a restructuring program that eliminated 11 varsity sport teams (5 women’s sports; 6 men’s sports) and raised the status of two club teams (women’s sailing and co-ed sailing) to varsity status (Staff, 2020). Justifying the decision, Brown administrators pointed to the fact that the University offered the third largest number of varsity athletic programs in the country but struggled to remain competitive within its conference, the Ivy League. The motive for the restructuring was competitive equity as reflected in the remarks of BU’s president, Christina Paxson, who explained that the stress of the COVID-19 pandemic played no role in the decision and that money freed up from the program reductions would be reallocated within the athletic department (Paxson, 2020b). Shortly after making the announcement, in response to public pressure, three of the eliminated men’s teams — cross country and indoor and outdoor track and field — were reinstated (Dinkins, 2020; Paxson, 2020c).
Within a month of the announcement, a motion was filed by attorneys for Public Justice and the American Civil Liberties Union (ACLU) of Rhode Island alleging that the plan violated a joint settlement agreement reached in 1998 requiring Brown to ensure that athletic opportunities were offered on a gender equitable basis in compliance with Title IX of the Education Amendments of 1972. Seeking to have the agreement enforced, the motion noted, “Defendants’ decision to eliminate five women’s intercollegiate athletic varsity teams, and with them meaningful participation opportunities for women, constitutes a gross and willful violation of the Joint Agreement to the immediate and irreparable harm of the class” (Cohen v. Brown University, 2020, p. 3). The Plaintiffs also sought emergency relief to prevent Brown from permanently eliminating the women’s sports and a finding from the Court that Brown was in contempt.
Brown’s Response to Cohen’s Motion to Enforce the Joint Agreement & Request for Emergency Relief
In response to Cohen’s motion, Brown argued two points. First, the Plaintiffs’ Emergency Motion was without merit due to the terms of the Joint Agreement. And second, with the Ivy League cancelling fall sport competition and only a small percentage of undergraduate students expected back on campus because of the COVID-19 pandemic, Brown could not violate the provisions of the agreement.
In terms of the motion to expedite, Brown maintains that the analysis of the impact of the cuts to women’s sports requested by Cohen are not due until after the 2020-2021 academic year. The University points to what it refers to as the “plain language” of the Joint Agreement (1998) for the delivery of an annual report to be completed retrospectively, meaning that the report reflects back on what the state of the athletic department achieved in terms of gender equity from the previous year. Emphasis is placed on where the methodology comes from in the Joint Agreement that asks Brown to assess the gender balance within the athletic department using athletic participation figures that are recorded for both the first and last days of competition for each team, with the average number between the two used in the analysis. The timing of the analysis is set for the end of the academic year rather than at the beginning. As noted in the response, “Given these provisions, Plaintiffs do not — and cannot — dispute the University was in compliance with the Joint Agreement” (Cohen v. Brown, Defendant’s response to motion to expedite, 2020, p. 4).
Brown also argues that due to changes that have been prompted by health and safety considerations associated with COVID-19, there is no need to respond to the proposed cuts to women’s athletics at Brown on an “emergency” expedited schedule. To support this argument, Brown noted that in order to reduce the density of the student populations on campus for the 2020-2021 academic year, the academic calendar was expanded to three semesters (fall, spring, and summer) with students being scheduled to be on campus for two of those three semesters. In the athletic realm, presidents in the Ivy League made the decision to cancel the fall sports season as a result of continuing spread of the virus and the fact that “…we simply do not believe that we can create and maintain an environment for intercollegiate athletic competition that meets our requirements for safety and acceptable levels of risk, consistent with the policies that each of our schools is adopting as part of their reopening plans this fall” (Cohen v. Brown, Defendant’s response to motion to expedite, 2020, p. 6).
Some Questions to Contemplate As This Case Moves Forward
Among the questions to contemplate as this case moves forward is whether Brown is using the changes that have resulted from the COVID-19 pandemic to shield it from providing information regarding its decision to cut women’s sport? In their motion for emergency relief, the Plaintiffs reported that their requests for basic information about the deliberative process the University had set in motion in 2018-2019 and had engaged in behind closed doors, such as reports and meeting minutes from consultants and a committee appointed by the president, had been denied. Does the retrospective analysis that Brown relies on from the Joint Agreement, which it argues does not require an accounting of the impact of the cuts to women’s teams to be made until a year after the cuts take effect, bar an analysis of the impact of their actions in the present? How was Brown planning to comply with Title IX in the aftermath of cutting five women’s teams, and restoring three of the six men’s teams initially scheduled to have been eliminated, if it was not going to make any kind of assessment until a year after the cuts to the women’s program took hold? How was Brown planning on satisfying the requirement of the Joint Agreement that athletic opportunities available to female athletes are to be proportional to the representation of females within the undergraduate population within a 2.5% variance if they had done no analysis of how their actions would impact the women’s sport program prospectively? What information did the University use to support its claim at the time the Excellence in Brown Athletics Initiative was announced that the restructuring of the athletic program would be done in a gender equitable manner if an analysis was to be done a year after five of the women’s sports were eliminated?
References
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
Cohen v. Brown University. Motion to enforcement judgment, to adjudge in contempt, and for emergency relief. United States District Court for the District of Rhode Island. Case Number: 92-CV-0197. (2020, June 29).
Cohen v. Brown University. Defendant’s response to plaintiffs’ motion to expedite. United States District Court for the District of Rhode Island. Case Number: 92-CV-0197. (2020, July 9).
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
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
