The U.S. Court of Appeals for the First Circuit in Boston upheld the settlement agreement reached in Cohen v. Brown in December 2020 in a continuation of legal battles between the University and a group of women student-athletes.
A group of plaintiffs filed a motion in Cohen v. Brown in response to the University’s Excellence in Brown Athletics Initiative, which initially demoted 11 varsity sports to club status in June 2020, The Herald previously reported. Class representatives filed a motion to enforce the judgement of the landmark 1998 case Cohen v. Brown, arguing that the demotions made Brown noncompliant with the conditions of the consent decree, and in turn disproportionately impacted women athletes.
A federal judge approved a settlement that reinstated the women’s fencing and equestrian teams to varsity status in December 2020 and set an expiration date on the consent decree, The Herald previously reported. This settlement was appealed by 12 current members of the women’s hockey and gymnastics teams, represented by attorney Robert Bonsignore.
Bonsignore and his clients appealed the settlement over concerns about the addition of an expiration date for the 1998 decree and petitioned the court to maintain the original agreement. With the settlement upheld, the decree will now expire at the end of the 2023-24 academic year.
Attorney Lynette Labinger, who represents the plaintiffs from the original Cohen case, said that the expiration date is actually in the best interest of gender equity in athletics.
“We believe that once the settlement sunsets, that the law of Title IX is actually more demanding than what (restrictions) we had with the settlement, which was 2.25% (variance),” Labinger said. With the large size of Brown’s athletic program, “2.25% (variance) is too generous to Brown.”
According to the motion to enforce judgement filed in June 2020, the 1998 joint agreement states that beginning July 1, 2001, the proportion of varsity opportunities for women at Brown could not fall more than 3.5% below the proportion of undergraduates who are women. But, the motion adds, citing the original consent decree, that if the University eliminates any women’s varsity teams, the variance allowed falls to 2.25%.
The settlement “provided concrete, immediate benefits for our class members” and will cause the University to have to abide by stricter athlete ratios than 2.25% variance, Labinger added.
While Labinger conceded that the settlement was “not everything that we wanted” — noting that only two out of the five demoted women’s sports teams were reinstated as a direct result of the settlement — she believes that its overall impact is positive. “It was a compromise,” she said.
“The class members who were on the affected teams, including the three teams that were not reinstated, also stood by the settlement,” Labinger said. “They did not file any objections.”
Only 12 of the roughly 400 women athletes objected to the settlement, she said.
But Bonsignore said the current settlement “gave away a lot of protections for nothing.”
Bonsignore cited a series of emails between President Christina Paxson P’19 and Chancellor Samuel Mencoff ’78 P’11 P’15, which were disclosed in August 2020 and characterized the consent decree as a “pestilential thing,” as evidence of Brown’s lack of commitment to gender equity.
“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?” Mencoff wrote in an email in reference to backlash to the Excellence in Brown Athletics Initiative.
Bonsignore also denounced what he perceived as Brown capitalizing on student uproar regarding the demotion of other sports in order to maintain compliance with the consent decree to garner support for overturning it.
University Spokesperson Brian Clark wrote in an email to The Herald that the University is pleased with the upheld settlement and will remain “steadfastly committed to providing equal athletic opportunities for women and men.”
“We look forward to continuing Brown’s track record of leadership in upholding Title IX, ensuring excellent athletics opportunities for women and men and fielding a roster of Brown Athletics varsity teams that are among the most competitive among our peers,” Clark wrote.