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Internal emails between Paxson, key administrators reveal desire to ‘get us out of’ 1998 Title IX consent decree

New motion in Cohen v. Brown lawsuit forces release of documents related to varsity sports cuts

By
University News Editor
Thursday, August 27, 2020

Emails between University administrators released today reveal internal strategies regarding Title IX compliance and the recent demotion of several varsity teams.

The June emails were sent prior to the reinstatement of men’s track, field and cross country teams and before a motion was filed later that month claiming the reinstatement made Brown non-compliant under a 1998 Title IX decision by not providing athletic opportunities to women adequately proportional to the percentage of women enrolled as undergraduates.

In the series of emails, which were released for review after U.S. District Court Chief Judge John J. McConnell Jr. ordered that the University disclose documentation related to the varsity sports cuts in the spring, administrators discussed possible intentions to relieve the University of the constraints of the Title IX agreement. For example, President Christina Paxson P’19 wrote that the athletes’ reaction to the moment could “get us out of” the original consent decree from the 1998 case, Cohen v. Brown University, in a June 5 email.

On June 4, Chancellor Samuel Mencoff ’78 P’11 P’15 wrote in an email to Paxson: “Could we use this moment, where anger and frustration, especially from track and squash, are intense and building to go after the consent decree once and for all? Could we channel all this emotion away from anger at Brown to anger at the court and kill this pestilential thing?”

He continued: “The argument would be that the consent decree is forcing us to eliminate these sports, and the court would then be bombarded with emails and calls as we are now. We would be aligned then with all who oppose us now.” 

In response, Paxson wrote, “This might be the perfect moment to petition the court to get us out of this agreement, which would let us restore men’s track, field (and cross country) and still remain in compliance with Title IX.”

After the University demoted 11 athletics programs from the varsity roster to club status, subsequently reinstating men’s track, field and cross country, Amy Cohen ’92 and a group of 12 other plaintiffs filed a motion in their 1998 lawsuit against the University for allegedly violating the terms of the original settlement, The Herald previously reported.

According to the motion to enforce judgment filed in June, the 1998 joint agreement states that beginning July 1, 2001, the fraction of varsity opportunities for women at Brown could not fall more than 3.5 percent below the fraction of undergraduates who are women. But, “if Brown University eliminates any ‘intercollegiate athletic teams for women,’ then ‘the percentage of each gender participating in Brown’s intercollegiate athletic program shall be within 2.25 percent of each gender’s percentage in the undergraduate enrollment for the same academic year.’”

Brown has no current intentions to terminate the joint agreement, wrote University Spokesperson Brian Clark in an email to The Herald. But the University finds the consent decree outdated and overly-restrictive, hindering the improvement of other athletics programs, Clark added. 

“The current thinking among federal courts today is that consent decrees, like the Cohen agreement, that have no end date, are not advisable,” Clark wrote. “The resources being spent on the current proceeding, which could have been spent on improving the experience of our student-athletes, only highlight that fact. And on top of that, the joint agreement imposes inflexible constraints on Brown’s athletic program that are not imposed on any other college or university in the country, including the schools against which our teams compete.”

On June 9, prior to the University’s announcement that it would reinstate men’s track, field and cross country, Paxson wrote to Mencoff and Trustee Kevin Mundt: “I expect both of you may have wanted us to be more explicit about our intention to fight the consent decree. Our concern is that this could rile up the Cohens of the world and put us in a defensive posture. We need space to work out a rock-solid legal strategy and then go on the offensive.”

Pl_Supp_Brief_to_Enforce_Judgment_App_3
 

The ACLU of Rhode Island supported the recent motion to enforce the University’s compliance with the 1998 agreement. “Brown University’s clear disdain for promoting gender equity in its athletic program is deeply disappointing,” said Steven Brown, Executive Director of the ACLU of Rhode Island, in an Aug. 27 press release from the ACLU of Rhode Island and Public Justice. “I am hopeful that the judicial system will hold the University accountable and vindicate the important goals underlying Title IX.”

University Spokesperson Brian Clark maintained that the University has consistently complied with and respected the 1998 agreement. “For decades, the University has met its obligations under Cohen — an agreement that established requirements not faced by any other institution of higher education in the country — annually reporting to the plaintiffs’ attorneys about compliance,” Clark wrote in an email to The Herald.

“At no time has anyone raised doubt about Brown’s commitment to complying with Title IX. The changes to the varsity roster lineup remain in compliance with Cohen, and if Brown’s varsity teams were able to compete this fall season, we would be in compliance for the upcoming academic year as well. We remain confident that the federal court judge, who, unlike plaintiffs, will apply the language of the consent decree and basic principles of contract law, will agree.”

This is a developing story. Check back for updates.

Correction: A previous version of this article stated that Paxson discussed the consent decree in a June 2 email. In fact, it was a June 5 email. The Herald regrets the error. 

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  1. Frank Travis says:

    These emails were not snippets or taken out of context. What an inexcusable display of misguided power from individuals who are leaders in title only. As the father of daughters, I could not imagine paying tuition to a place like Brown. The only apology is to reinstate these teams and apologize until your terms run out- this is your legacy as administrators but also as human beings.

  2. “Locker room talk”?

  3. Brown Hoops Fan says:

    Quick get the band to boycott Paxson! Imagine a woman President of A Liberal Ivy League school not believing in equality for women athletes? Wow! Where is all the outrage from all the Women basketball players who were so upset over alleged body shaming? Will they boycott games? Protest? Call for Paxson’s resignation?

  4. Helen Rosen says:

    To the female community at Brown, and especially the female athletes- you should all be appalled that this is how your President, a female in a high profile leadership position, speaks about you behind closed doors. She doesn’t stand up for you, but instead warns against riling “the Cohens of the world.” It is the “Cohens of the world” who ensure that females are given equal opportunities in college athletics and the “Cohens of the world” who paved the way for the possibility of a female university president. Hold her accountable.

    • Sleepless in Providence says:

      Completely agree. Brown needs to make things right. That is why pencils have erasers attached to them, Paxson!

  5. Tom Salvatore says:

    Jack Hayes making the Title IX numbers work? Ask the Hofstra football team (RIP) how that worked out.

    • "A Cohen of the world" says:

      I can say from personal experience that Brown has been massaging the number of female athletes for at least 15 years. If someone came to at least one try out they got listed on the brown athletics website as being on the roster.

      • Annoyed Alum says:

        Also, they’re upgrading co-ed sailing and women’s sailing to varsity status. This is misleading because the female athletes on both teams are the same, yet the sports are counted separately, and so the women sailors get counted twice in the count of female athletes without actually increasing the number of women participating in sports. It’s ridiculous. Plus they’ve never explained the logic behind why they were cutting these sports, even ones like squash that have endowments, don’t cost the university anything, and have teams at all the ivies (which happens to be an athletic league, not a educational brand). No more donations from me. Paxton and these millionaire hedge fund guys running the board must go.

        • Sleepless in Providence says:

          You can tell that this corporation was only passively interested in decisions that have reshaped lives and attitudes of Brown students. This is how Brown runs things?
          Money buys a lot of things but not character. Shame on you Brown. This will be front page news. In any other climate, this would be 60 Minutes material.

  6. #FirePaxson

  7. Theodore Reilly says:

    How about this Mencoff person? “pestilential” describes his attitudes towards women and Brown students. How tone deaf to use that word during a pandemic. With all that private equity money, can he take a class on relatability with people outside of his smoky men’s grill room circle?

  8. Kevin A. Seaman says:

    Aside from all the hub-bub re. the emails the well-taken point was that the settlement agreement was misguided in its strictly playing a numbers (%) game on availing females of “athletic opportunities”…….complying with the intent of Title IX is not a mere numbers game…..Brown, as others, faces a skewed numbers game ( the size of football rosters in the League off-balancing dictated female spots) …..Brown has had difficulty in filling female roster spots at the numbers dictated by the settlement agreement – a more nuanced agreement is called for ….Brown should have gone back to court to seek to reform the unreasonable dictates of the over two decades old agreement….unfortunately, the reinstatement of men’s track and cc (on race equity grounds, etc.) put Brown in a defensive position and in the cross-hairs of the women advocate groups who demand compliance with a failed Title IX model no matter what….hope the court recognizes the dilemma of an agreement that is alien to needed flexibility…..

    • Athlete Alum says:

      As explained in the materials provided to the corporation, Title IX does *not* have a strict numbers game rule. Brown has to engage in a different numbers game than everyone else because Brown specifically engaged in an effort to limit female athletics. Penn is allowed to have a 10% difference between the percentages of male athletes and male students. As presented to the corporation, when a university makes good faith efforts to promote gender equality in athletic opportunities, if it still falls short it isn’t necessarily penalized. In its pursuit of “excellence” Brown once again has shown that it doesn’t care about providing equal opportunities to female and male athletes. This stunt will only lead to greater, not lesser, constraints on the university.

  9. Peter Mackie '59 says:

    There is no question that Brown should have challenged the Consent Decree directly, well before this attempt to deflect attention from the pushback around an ill-advised decision.

  10. It is ridiculous that men and women need to like and participate in activities at the same rates and interests. Why choose sports? Why not have equal number of engineers, math majors. writing majors, theater majors in proportion to the students. It took a women to find this restrictive and ridiculous because e a male would have ben fired for saying it.

    • Athlete Alum says:

      As explained in the materials provided to the corporation, Title IX does *not* have a strict numbers game rule. Brown has to engage in a different numbers game than everyone else because Brown specifically engaged in an effort to limit female athletics. Penn is allowed to have a 10% difference between the percentages of male athletes and male students. As presented to the corporation, when a university makes good faith efforts to promote gender equality in athletic opportunities, if it still falls short it isn’t necessarily penalized. In its pursuit of “excellence” Brown once again has shown that it doesn’t care about providing equal opportunities to female and male athletes. This stunt will only lead to greater, not lesser, constraints on the university.

      So no, men and women do not need to participate in the same activities at the same rate and Title IX has never said that they do.

      • Brown did not try to limit female athletes. The reverse is true. They could not fill teams and had to recruit and add teams that were bleeding money just to make numbers. Men want to do sports in college in way higher numbers than females. Hopefully with this pandemic emphasis on sports will decrease.

  11. Exasperated by Brown says:

    Do you have data to support that claim? Which sports? Those who have been around Brown sports know that the only scrambling to be competitive happens because of how disorganized and arbitrary the Brown athletic funding and resource allocation process works and that unfortunately is evident in the “preparation” the Brown defense has submitted. Education through athletics, like education through the fine arts, empirically helps students and campuses.

    All Brown sports bleed revenue if they are not properly endowed and managed. This is not the SEC. To think that each sport at Brown couldn’t be fully endowed and equipped to be Excellent is a failure of this administration and Brown is worse off because of it, and now has a culture issue because of how this is being handled. The sad part here is the affected men’s sports being cut don’t have as much of a voice but are victims of the same ineptitude.

  12. I think what’s being missed here is that the terms of the Cohen agreement have become MORE restrictive as US student demographics shift. When the agreement was put in place, there were more boys attending US colleges than girls. Now the opposite is true, and the discrepancy is widening by the year. Nationally the spread is already close to 56-44! So Brown’s 52-48 is actually much more gender-balanced than the national student pool (side note – does this mean that women have a lower acceptance rate to the university than men?).

    Bottom line: the university is now basically required to provide MORE women’s athletic opportunities than men’s opportunities (which wasn’t the case 20 years ago) , but the numbers get thrown off because football has 100+ men on the roster and no women’s equivalent to balance it out. Track is actually the biggest women’s roster in the NCAA at around 50-60 athletes (plus the XC runners get counted twice), which is why they only cut men’s track in the original decision.

    There are only so many NCAA/collegiate sports to play, and the university can’t keep adding new women’s teams just to keep up with demographic shifts from year to year. Cutting football is a non-starter, so it really is a tough predicament to be in.

    All that said, Paxson and the board really need to find ways to discuss these issues with each other and the wider community without coming across as unfeeling robots…

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