In court filing, Brown asserts clear case for commitment to gender equity in athletics

University confronts “conspiracy claims” in its response to an action seeking to overturn Brown’s decision to transition women’s varsity teams to club status; Brown shares exemplary record with court.

PROVIDENCE, R.I. [Brown University] — In a legal filing supporting Brown’s decision to revise its roster of varsity sports, the University is sharply rebutting claims against its strong commitment to female athletes and gender equity in athletics.

Brown’s filing on Wednesday, Sept. 2, in U.S. District Court in Rhode Island, asserts that plaintiffs seeking to overturn the University’s decision to change its varsity roster have resorted to baseless accusations and “spurious conspiracy claims” after Brown supplied clear data showing that it remains in full compliance with both Title IX and also a 1998 joint settlement agreement in the Cohen v. Brown case.

The Joint Agreement, which specifies that the fraction of varsity athletics opportunities for women must be within a fixed percent of the fraction of women in the undergraduate student body, is being used to challenge changes in Brown’s varsity sports lineup.

“When they filed their Emergency Motion in June, Plaintiffs did not yet have access to the most recent roster Declaration Forms which unequivocally show that Brown will once again be in compliance with the Joint Agreement in the 2020-21 academic year,” Brown states in its filing. “It is perhaps unsurprising that since Plaintiffs came into possession of that data, they have resorted to spurious conspiracy claims and focused their energies on the process that led to Brown’s decision, rather than the hard data that makes Brown’s compliance with the Joint Agreement all but a certainty.”

The Joint Agreement, which settled a lawsuit filed by female athletes in the 1990s, established requirements at Brown for promoting equity in “participation opportunities” for women and men student-athletes. The agreement is separate from the federal Title IX Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions. The Joint Agreement imposes unique constraints on Brown’s athletics program that are not faced by any other college or university in the country, including the schools against which Brown’s teams compete.

The plaintiffs in the case have filed a motion asking the court to overturn Brown’s decision to transition five women’s varsity sports and three men’s varsity sports to club status, and to add two new varsity teams that provide significant participation opportunities for women. Plaintiffs claim this decision violates the 1998 Joint Agreement and claims it’s a so-called plan to “dismantle” it.

Brown’s legal filing in opposition to the plaintiffs’ motion argues that the plaintiffs have petitioned the court, not on a legal basis, but based on a false narrative that focuses on Brown’s acknowledged frustration with the unique constraints of the Joint Agreement.

University President Christina H. Paxson, whose statements have appeared in recent filings, asserted that Brown’s concern over the restrictiveness of the Joint Agreement “is entirely separate from our unwavering support for equal opportunity for women in athletics.”

“Twenty-two years ago, Brown was clearly in violation of Title IX, and the Cohen agreement served an important purpose in creating opportunity for women athletes, but Brown’s engagement with issues of gender has changed,” Paxson said. “Since the original agreement, Brown has had three women presidents, our general counsel was a two-sport female varsity athlete at Brown, and we have one of the best records in varsity athletics among our peers for providing opportunities for woman student-athletes.”

Paxson continued, “As someone who loves sports, routinely goes to the games and cheers these women athletes on, I have no intention on backsliding on our commitment to equity for women. It’s not only our legal obligation, it’s the right thing to do.”

Brown has complied fully with Title IX and the Joint Agreement, and has never implied anything other than a clear commitment to continue to do so, Paxson said.

The varsity changes are part of the Excellence in Brown Athletics Initiative, which seeks to improve the competitiveness of Brown athletics. Before the initiative was announced in May, Brown had 38 varsity teams, the third-highest number in the country, without the resources to support a competitive experience for athletes on so many teams. 

Brown argues in its filing that the Cohen v. Brown Joint Agreement clearly permits improvements to its varsity program, including changing the composition of varsity teams:

“The Joint Agreement contemplates that Brown can and will adjust both its varsity sports teams and its roster sizes. All the provisions requiring that specific sports retain their varsity status expired after one to four years, in 2002 at the latest… .”

Brown’s filing also argues strongly that compliance with the Joint Agreement rests solely on athletics rosters from the previous academic year, while the plaintiffs ask the court to see into the future to speculate about rosters in future years. Compliance “turns on the number of varsity athletic participants on Brown’s athletics rosters on the first and last date of regular season competition —neither of which has happened yet for the 2020-21 academic year,” the filing states.

Athletics Director Jack Hayes reiterated that Brown’s ongoing commitment to providing varsity athletics opportunities to women is based on its core values, and that won’t change.

“When you compare the percentage of opportunities Brown provides for female varsity athletes with the percentage of female undergraduate students, which is one of the standards in higher education that Title IX sets for meeting equity requirements, Brown is a leader,” Hayes said.

“The tactics being employed by the plaintiffs in this case have been shocking,” he said. “By making inferences and connections between unrelated statements, the plaintiffs in this case have built an absolutely false narrative about Brown’s commitment to diversity and gender equity,” he said.

Brown’s court filing presents extensive data in a series of tables to demonstrate that “Plaintiffs provide no evidentiary basis for finding any violation.”

With the recent changes in its varsity program, the Joint Agreement requires that the percentage of women’s participation in sports and the percentage of undergraduate women enrolled at Brown vary by less than 2.25%. For 2020-21, putting aside disruptions in athletics due to COVID-19, Brown expects this “variance” to be only 0.29%. Not only is this expected variance within the established limit, it is roughly seven times less than what is required under the agreement. Also, Brown’s athletics rosters show an overall composition of 52% women student-athletes and 48% men student-athletes — far exceeding participation numbers of women student-athletes at peer institutions and across the nation.

Brown’s filing asserts:

“This is not a proceeding about whether Brown would prefer to be governed only by Title IX, rather than navigate the dual and different requirements of Title IX and the Joint Agreement. Brown officials are entitled to their subjective views on the Joint Agreement, even while they are committed to complying with it. Nor is this a proceeding about whether Brown followed Plaintiffs’ preferred process in deciding to transition certain varsity sports to club status. …

“This is a proceeding about a single provision in the Joint Agreement — specifically, whether Brown unequivocally intends to commit a gross violation of the gender proportionality requirement for the 2020-21 academic year. Brown’s witnesses all stated that Brown intends to abide by the Joint Agreement, and the best roster information available demonstrates that it will in fact do so.”

Brown’s full filing is available online. The court will hold a hearing during the week of Sept. 14, after which it will issue a final decision regarding Brown’s compliance with the Joint Agreement for the 2020-21 academic year.