Settlement ends Cohen agreement, enables Brown to proceed with plan to advance athletics competitiveness

University secures settlement in Cohen v. Brown that sets a 2024 end date to agreement that has hindered competitive varsity athletics for women and men at Brown, while agreeing to return two women’s teams to varsity status.

PROVIDENCE, R.I. [Brown University] — A proposed settlement to resolve a legal motion in a decades-old case will enable Brown University to move forward with key provisions of a plan to strengthen the competitiveness of its athletics teams and uphold its long-standing commitment to Title IX in providing equal opportunities in athletics for women and men.

The settlement with plaintiffs’ attorneys sets an August 2024 end date to a 1998 Joint Agreement in Cohen v. Brown that previously had no end date. The Joint Agreement, which specifies that the fraction of varsity athletics opportunities for women at Brown must be within a fixed percent of the fraction of women in the undergraduate student body, was being used to challenge changes in the University’s varsity sports lineup announced in May of this year.

Through its briefs in the recent legal action, the University had demonstrated that Brown has become an established leader in Title IX and providing opportunities to women athletes. Specifically, Brown has been in full compliance, often by a significant margin, with the Joint Agreement throughout President Paxson’s tenure. At the same time, Brown asserted that the Joint Agreement has been a significant obstacle to the University’s ability to offer women’s and men’s teams the competitive experience athletes deserve and expect. Among other things, the 1998 Joint Agreement established unique reporting requirements not faced by any other college or university in the U.S. As part of the proposed settlement to end it, Brown agreed to return women’s equestrian and women’s fencing to varsity status.

The plaintiffs in the case had asked the court to overturn Brown’s decisions as part of its Excellence in Brown Athletics Initiative to transition five women’s varsity sports to club status, and to add two new varsity teams that provide significant participation opportunities for women.  As part of the initiative, Brown also transitioned three men’s varsity sports to club status. The court’s approval of the settlement will set aside the plaintiffs’ legal challenge to the changes to Brown’s sports program.

"We are very pleased with the settlement,” Brown President Christina H. Paxson said. “From the outset of this initiative, Brown’s efforts have been about one thing — increasing opportunities for our student-athletes to be part of a competitive program. The Cohen agreement served an important purpose when it was signed 22 years ago, but Brown’s commitment to women athletes transcends the agreement. We can provide excellent athletics opportunities for women and men, be a leader in upholding Title IX and have a competitive varsity program. And we will.”

For the past 22 years, Brown has not only complied with the terms of the Joint Agreement in Cohen, but also with its Title IX obligations for the equitable treatment of women and men in athletics, Paxson said. That will not change.

Importantly, the end date to the 1998 Joint Agreement will eventually eliminate the need for complex roster maneuvers or “management” within the academic year, including managing “walk-ons” or non-recruited student-athletes, which was an obstacle for teams to be truly competitive.

The Joint Agreement is separate from the federal Title IX Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions, and Brown continues to have one of the best records in varsity athletics among its peers for providing opportunities for women student-athletes under Title IX. The Joint Agreement had imposed unique constraints on Brown’s athletics program not faced by any other institution, including the schools against which Brown’s teams compete.

The Joint Agreement originally settled a lawsuit filed by female athletes in 1992, and established requirements at Brown for providing equity in “participation opportunities” for women and men student-athletes.

Reshaping Brown’s sports program

Beyond the return of women’s equestrian and women’s fencing to varsity status, Brown’s other planned changes to its varsity program will move forward as part of the Excellence in Brown Athletics Initiative. Six former varsity teams — men’s fencing, men’s and women’s golf, women’s skiing, and men’s and women’s squash — have transitioned  to club status, and the University’s women’s and co-ed sailing teams will retain their new status as varsity teams.

Ultimately, Brown will have 34 varsity teams — a net reduction of four compared with the 38 teams it has fielded in recent seasons when it had the third highest number of varsity teams in the nation. With Stanford University’s recent announcement that it is eliminating 11 varsity teams, Brown and Harvard will still have the highest number of varsity teams in the country.

Brown Athletics Director Jack Hayes said the settlement will remove an obstacle to the University’s ability to reshape its athletics programs so that Brown student-athletes can compete on teams that are among the most competitive among university peers.

“With the reduced number of teams, the University will maintain its budget for athletics, aside from any COVID-related reductions, and we’ll continue to recruit the same number of varsity athletes, while squad sizes on varsity teams will be adjusted,” Hayes said. “This all contributes to stronger recruiting in the admissions process, greater professional development of coaches and deeper talent on each team.”

As part of the proposed settlement, Brown and plaintiffs agreed to restore the varsity status of women’s equestrian, which is a team with no men’s counterpart. Brown then selected one other women’s team to return to varsity status. In selecting women’s fencing, Brown assessed the factors initially considered during the launch of its athletics initiative — the existing strengths of each team, diversity, current squad sizes, the quality of facilities available for practice and competition, and capacity for community engagement.

Hayes said he is excited that the terms of the proposed settlement create opportunities for fielding a more competitive varsity athletics program. While the Joint Agreement in Cohen focused on quantity of “participation opportunities,” for women, Brown hopes to improve the quality of those opportunities.

“Without doubt, this improves the student athlete experience for women and men,” Hayes said, noting that from 1980 to 1998, before the Joint Agreement, women’s teams at Brown won a total of 48 Ivy League championships, while in the 22-year period following the agreement, they won just 20.

“One of the most exciting moments in recent Brown Athletics history was watching our women’s soccer team capture the Ivy League championship in 2019 and advance to the NCAA tournament,” Hayes said. “Truly competitive teams — women’s, men’s or co-ed — and outstanding performances can build community, bring our campus together in celebration and propel student-athletes to lives of leadership and success.”

Hayes reiterated that Brown’s ongoing commitment to providing varsity athletics opportunities to women is based on its core values — a fact that won’t change, even long past the end of the 1998 Joint Agreement in four years.

“This settlement, and the ability to move forward with the Excellence in Brown Athletics Initiative, positions us to see many more of these championship moments in the future,” Hayes said. “Brown can remain a national leader in providing equal opportunities to women and men, and compete with the best athletics programs around.”

The terms of the settlement (available in full online) must be approved by Judge John J. McConnell, Jr. of the U.S. District Court in Rhode Island after notice to the plaintiff class and a fairness hearing.  The parties agreed to the following joint statement:

JOINT STATEMENT ISSUED BY THE PARTIES IN COHEN V. BROWN UNIVERSITY

Brown and the attorneys representing the plaintiff class in the Cohen v. Brown case have reached a proposed settlement on plaintiffs’ June 29 court challenge to Brown’s restructuring of its athletics program. The original Cohen case was settled in 1998 by Joint Agreement. The plaintiffs’ recent motion alleged violation of that Joint Agreement.

Under the terms of the proposed settlement, Brown’s women’s equestrian and women’s fencing teams will be restored to varsity status and the Joint Agreement will terminate in August 2024. All other changes to Brown’s athletics program announced in May 2020 will remain unaffected by the parties’ settlement, including that women’s golf, skiing, and squash will continue at club status and women’s and co-ed sailing will remain at their newly-elevated varsity status, with each varsity sailor counted once for purposes of the Joint Agreement. 

The Joint Agreement, which has been in effect since October 1998, will terminate on August 31, 2024, and Brown will remain subject to Title IX. While the Joint Agreement is in effect, Brown will comply with the Agreement’s maximum 2.25% difference between the percentage of women varsity athletes and women full-time undergraduates. During this time, Brown will not reduce the status of or eliminate any women’s varsity teams and will not add any new men’s varsity teams.

The parties will incorporate these terms into a Proposed Amendment to the Joint Agreement, which will be submitted to Judge John J. McConnell, Jr. of the U.S. District Court for the District of Rhode Island for his approval upon notice to the Cohen class. Brown’s women’s equestrian and fencing teams will be restored to varsity status upon preliminary approval of the proposed settlement, which is expected to be presented to the Court next week.

The Settlement Terms approved by the parties are attached.