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In new court filing, ACLU claims Brown breached Title IX agreement ‘and it continues to do so with every day that passes’

ACLU opposes Brown’s claims of Title IX compliance, challenges allegations of conspiracy in plaintiffs’ motion to enforce judgement

In a brief filed Tuesday, the American Civil Liberties Union of Rhode Island rebutted the University’s Sept. 2 court filing defending Brown’s compliance with Title IX regulations, which hold the University to standards set by the 1998 Cohen v. Brown University lawsuit. 

Brown demoted a number of athletics programs from the varsity roster in May, later reinstating the men’s track, field and cross country teams. In light of the modifications to the roster, Amy Cohen ’98 and the original plaintiffs from the 1998 Title IX suit — mandating that the University provide athletics opportunities to women roughly proportional to the number of female undergraduates — filed a motion in the original suit arguing that the reinstatement made Brown non-compliant under the requirements set by the consent decree. 

On Sept. 2, the University had argued in a legal memo that the plaintiffs’ previous motion distorts Brown’s compliance with Title IX, and asserted that plaintiffs “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 Herald previously reported.

But the reply brief asserts that the plaintiff’s motion is not “premature,” as had been stated in that memo, because “Brown has already breached the Agreement — and it continues to do so with every day that passes,” the filing stated. They added that Brown's decision to reinstate the Men’s Track, Field, and Cross Country teams without reinstating a proportional number of demoted women’s teams puts the school in violation of the variance required in their 1998 agreement.

University Spokesperson Brian Clark wrote in an email to The Herald that even with the roster modifications, Brown remains compliant under the mandates of the 1998 consent decree. To ensure that any decision made would maintain compliance, the University consulted Orley Ashenfelter, an economist and statistician at Princeton University, who concluded that “Brown will remain in compliance with Cohen's fixed proportionality requirement of 2.25% (with the student body) even if there are fluctuations in the undergraduate enrollment. Nothing in plaintiffs’ reply brief changes that,” Clark wrote. “Plaintiffs have failed to rebut the overwhelming record that Brown presented to the Court.”

Additionally, though the University alleged in the Sept. 2 filing that the plaintiffs had not consulted data that Brown said proves compliance with Title IX before the plaintiffs filed a motion alleging the University's noncompliance, the ACLU's reply brief states that their motion was actually filed after plaintiffs reviewed the 2020-21 preseason roster data. 

The reply brief continues that such data is “imaginary” because the cancellation of fall sports for the 2020-21 academic year as a result of the COVID-19 pandemic. “Brown knows the numbers in them for the fall sports are not true,” the filing states. “No fall sports are taking place this year at all. As Plaintiffs’ previous filings show, the 2020-21 preseason rosters cannot and do not prove that Brown is or will be in compliance.” 

The reply brief also rejected the University’s allegations that the plaintiffs’ assertions were conspiratorial rather than grounded in evidence. 

Finally, the reply brief stated that the University’s legal memo is inaccurate in its argument that the plaintiffs seek to challenge not only Brown’s degree of Title IX compliance but also the Excellence in Brown Athletics Initiative as a whole. 

“Plaintiffs did not challenge the original Excellence in Athletics process at all,” the reply brief states. The filing states that the Excellence in Athletics proposal before the University reinstated Men’s Track, Field and Cross Country, would have “significantly increased gender equity for women” by eliminating six men’s teams and five women’s teams. 

“Plaintiffs only challenged Brown’s actions after that proposal was jettisoned, along with the goal of advancing gender equity,” the filing states, noting that when Brown reinstated three men’s teams and no women’s teams, the University ultimately cut more than twice as many opportunities for women than for men.

Clark contended that the plaintiffs’ assertions against the University continued to misrepresent Brown’s commitment to Title IX. “Plaintiffs have once again selectively pulled disjointed excerpts from a few communications to create a false narrative not based on either the facts or the provisions of the Joint Agreement,” he wrote. “The record is clear that with changes to the varsity lineup and modifications to squad sizes, Brown will be in compliance with the requirements of the Cohen settlement and with Title IX.”

—Additional Reporting by Benjamin Pollard 


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