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.”
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.