Case: Cohen v. Brown University

The Initial Title IX Settlement (1992 – 1998)

In 1991, Brown University announced that it was going to eliminate four sports: women’s volleyball, women’s gymnastics, men’s golf, and men’s water polo. Brown explained that the teams could still compete as club sports, but it was no longer able to provide university funding for financial reasons. At that time, Brown’s student body was 52 percent male and 48 percent female, but 63 percent of its athletes were male.

On April 9, 1992, affected women students filed this class action lawsuit, claiming discrimination under Title IX of the Education Amendments Act of 1972. The named plaintiffs included student members of the women’s gymnastics and volleyball teams at Brown. The plaintiffs alleged that the decision to eliminate these teams was a violation of Title IX, because it was based on the stereotype that men are more interested in sports participation than are women.

On May 4, 1992, Brown filed a motion to dismiss, and the court granted the plaintiffs’ motion for class certification a week later. On July 15, 1992, the plaintiffs filed a motion for preliminary injunction. On August 7, 1992, the court denied Brown’s motion to dismiss.

On October 26, 1992, a bench hearing on the preliminary injunction was held over a period of 15 days. On December 22, 1992, the court (Judge Raymond Pettine) granted a preliminary injunction prohibiting Brown from eliminating the women’s gymnastics and volleyball programs. Specifically, in the preliminary injunction, the court ordered Brown to restore women’s gymnastics and women’s volleyball to their former status and prohibited the elimination or reduction of university funding for the two sports. 809 F. Supp. 978.

On December 29, 1992, Brown appealed. The First Circuit Court of Appeals granted a temporary stay, holding the injunction in abeyance while it decided the appeal. On April 19, 1993, the Court of Appeals affirmed the district court’s decision on the preliminary injunction. The court held that trial court did not abuse its discretion by issuing an injunction, and the case was remanded to the district court for further proceedings. 991 F.2d 888.

The trial on the merits began September 28, 1994. Two and a half months into the trial, on December 16, the parties reached a partial settlement agreement. The agreement settled the plaintiffs’ allegations that significant disparities existed in the relative financial support of and benefits given to men’s and women’s university-funded varsity teams. The inequality in funding between male and female varsity teams had never been in contention. The dispute involving the overall difference between male and female opportunities for participation continued. The settlement agreement regarding varsity teams “did not resolve any program-wide treatment inequities. Rather, it settled only the relative support afforded to men’s and women’s university-funded teams [as opposed to donor-funded teams] as to which there is no dispute concerning their university-funded varsity status.” In essence, and as the docket stated on December 16, 1994, the “Settlement Agreement” was a stipulation acknowledging the inequality of opportunities to participate in university-funded activities, and a dismissal of the claims surrounding that issue. 879 F. Supp. 185.

The trial concluded with final arguments on December 16 after 29 days in court. The attorneys addressed the court on a possible settlement on treatment issues, then discussed participation issues. The court issued its final opinion and order, finding for the plaintiffs, on March 29, 1995. The court held that: (1) the university violated Title IX by failing to effectively accommodate interests and abilities of women athletes, failing to steadily increase the number of opportunities for women, and failing to effectively remedy athletic interests and ability of women, and (2) the two-tiered structure of intercollegiate varsity program failed to provide equal treatment of athletes. Brown was given 120 days to come up with a comprehensive plan for complying with Title IX. 879 F. Supp. 185.

On April 19, 1995, Brown appealed the district court’s ruling, claiming error in certain evidentiary rulings made during the trial and in the district court’s order of specific relief in place of Brown’s proposed compliance plan. In addition, Brown challenged on constitutional and statutory grounds the test employed by the district court in determining whether the university’s intercollegiate athletics program complied with Title IX.

On May 4, 1995, the district court issued a modified order, requiring Brown to submit a compliance plan within 60 days. Finding that Brown’s proposed compliance plan was not comprehensive and that it failed to comply with the previous order, the district court rejected the plan and ordered in its place specific relief consistent with Brown’s stated objectives in formulating the plan. On August 17, 1995, Brown University was ordered to elevate and maintain women’s gymnastics, women’s water polo, women’s skiing, and women’s fencing to university-funded varsity status.

The district court entered final judgment on September 1, 1995, and on September 27, denied Brown’s motion for additional findings of fact and to amend the judgment. 879 F.Supp. 185.

Brown appealed the judgment in September 1995. On November 21, 1996, the appellate court found no error in the district court’s factual findings or in its interpretation and application of the law in determining that Brown violated Title IX in the operation of its intercollegiate athletics program. Applying the three-prong test of the Policy Interpretation, the court held that participation opportunities were not provided in substantial proportion to enrollment, and that the university had not shown either a practice of program expansion or full and effective accommodation of the interests and abilities of its women students. The court found that Brown had violated each of the 3 prongs of Title IX. Due to the 11% gap between opportunities for male and female athletes and their respective student enrollment, and because the university had not previously engaged in the continued expansion of women’s sports, Brown did not meet the substantially proportionate standard. The appellate court affirmed in all respects the district court’s analysis and its rulings on the issue of liability.

However, the appellate court found error in the district court’s award of specific relief and therefore remanded the case to the district court for reconsideration of the remedy. The appellate court found that Brown’s proposal to cut men’s teams was a permissible means of effectuating compliance with the statute. The appellate court stated that the district court was wrong to reject Brown’s alternative plan to reduce the number of men’s varsity teams. Chief Judge Juan R. Torruella dissented and indicated that he would have reversed the District Court’s decision. 101 F.3d 155.

On April 21, 1997, Brown submitted to the district court a new proposed compliance plan. The plan included eliminating men’s positions without eliminating any men’s teams; enforcing team minimums and maximums to stabilize relative proportions of men and women; and creating additional women’s intercollegiate opportunities. In order to comply with the court’s criteria that “intercollegiate level participation opportunities [be] provided in numbers substantially proportionate to their respective enrollment,” Brown decided to calculate the ratio of female students to male students, and then, based on that number, mandate strict minimum participation numbers for female teams and strict maximum participation numbers for male teams. In the event that the court rejected Brown's plan, the proposal also included alternative plans to change the status of one or more men’s teams from university-funded to donor-funded status, or to eliminate one or more men’s varsity teams. The compliance agreement contained no duration information or enforcement information, possibly because Brown was still fighting against the judgment of the district court.

On June 23, 1998, following settlement discussions, the parties reached an agreement and settled all outstanding issues, except for attorneys’ fees and expenses. The settlement agreement had “indefinite duration,” and required relative participation on intercollegiate athletic teams to be within 3.5% of the gender ratio for undergraduate student enrollment. The agreement also stipulated that in the event Brown added any new men’s teams, the variation from the gender ratio of undergraduate student enrollment was to be no more than 2.25% and a women’s team would need to be added at the same time. The settlement also defined funding for both men’s and women’s donor-funded teams in the years immediately following the settlement. Annual reports were to be published to the plaintiffs. Additionally, a provision was added to prevent retaliation against any person who opposed any Title IX violations by Brown. On June 23, 1998, the court gave interim approval to the settlement agreement. Following notice to the members of the class, the court gave final approval to the settlement on October 8, 1998.

On October 16, 1998, the court entered a judgment in favor of the plaintiffs and established a schedule for them to submit their fee application.

The plaintiffs’ fee application was filed on December 7, 1998. They sought $1,023,842.50 in attorneys’ fees and $104,182.25 for their expenses. With interest (calculated through December 31, 1998), the combined amount sought for attorneys fees and expenses exceeded $1.4 million dollars. Brown contested the fee. During that contest, the case was reassigned to Judge Paul Barbadoro; on the recommendation of Magistrate Judge David Martin, on December 5, 2001, he granted attorneys’ fees and and costs of $1.08 million. In 2003, again on the Magistrate Judge’s recommendation, Judge Barbadoro granted another $250,000 for the fees incurred during the fee contest. Brown appealed, but settled that appeal later in 2003.

Enforcement of the Initial Judgment (2020 – 2022)

Nearly two decades later, Brown announced on May 28, 2020 that it was discontinuing six women’s varsity sports and five men’s varsity sports, in an effort to increase the competitiveness of the university’s 27 other varsity sports programs. The university specifically indicated that the decision to discontinue men’s track, field, and cross country was made to enable the university to remain in compliance with the 1998 settlement agreement. On June 9, 2020, the university then announced that it was reversing its decision to discontinue men’s track, field, and cross country, citing extensive feedback from the university community, especially students of color, about the importance of track, field, and cross country in their education. However, the university did not change its plans regarding any other sport.

Concerned that the decision to eliminate five women’s sports and only three men’s sports would cause Brown to fall further out of compliance with the 1998 agreement, the plaintiffs filed a motion on June 29, 2020 to enforce the court’s 1998 judgment, to hold the university in contempt, and to grant an injunction prohibiting the university from discontinuing any women’s sports programs unless it demonstrated to the court that such discontinuation would not cause the school to fall out of compliance). They also moved to have the case reassigned to a sitting member of the District of Rhode Island (Judge Barbadoro had been assigned to the case as a visiting judge from the District of New Hampshire).

The case was reassigned to Chief Judge John J. McConnell, Jr. On July 2, 2020, the court ordered the university to “expeditiously produce to the Plaintiffs all information that Brown has as to the elimination of certain athletic teams as it relates to gender.”

On August 11, 2020, the case was referred to Magistrate Judge Patricia A. Sullivan to begin conducting a settlement conferences. Following discovery, in September of 2020, parties filed a joint motion for preliminary approval of proposed settlement. However, 12 members of plaintiffs’ class, all members of Brown’s varsity women’s gymnastics and hockey teams, objected to proposed settlement on November 24, 2020. They argued that the named plaintiffs were not adequate representatives of the class, and that the terms of the settlement gave them a “raw deal.” The district court overruled their objections following a fairness hearing, where the court pointed out that the fact that only 12 class members of a much larger class objected “is in and of itself representative of the settlement’s reasonableness.” The district court approved parties’ final proposed settlement order on December 21, 2020.

The final December 21, 2020 settlement amended the original 1998 settlement as agreed by the parties. Brown agreed to restore varsity status to two teams that Brown selected: Women’s Equestrian and Women’s Fencing. Brown further agreed that it would not add any new men’s teams to its varsity program, and that if it decided to restore varsity status to any of the men’s teams slated to transition from varsity to club status, it would also restore varsity status to at least two additional women’s teams. Brown also agreed that any women’s team restored to varsity status would receive the same level of support that the team received before the team was transitioned from varsity status in 2020. Finally, Brown agreed that it would not reduce the status or eliminate any women’s varsity teams for the remaining term of the settlement agreement. Parties agreed that all terms of the settlement are to remain in full force and effect until August 31, 2024.

The twelve objecting class members appealed the district court’s dismissal of their objection to the First Circuit on January 7, 2021. The First Circuit issued their opinion on October 27, 2021, affirming the district court’s decision and the adequacy and fairness of the final class settlement.  16 F.4th 935.

The objecting class members first argued that the class representatives did not adequate represent the members of the class as a whole. First, they argued that the class representatives could not adequately represent the class because at the time the 2020 settlement was reached, the class representatives – who were Brown athletes at the time of the first settlement in 1998 – were not participating in Brown’s athletic programs. The First Circuit rejected this argument, finding that the fact that the representatives’ original claims were moot did not in itself render them inadequate class representatives. Here, the First Circuit found the class representatives to be competent champions of the class’s cause in part because of their detailed knowledge of the history of the case. Second, the objecting class members argued that any one representation of the class was inherently inadequate due to conflicting interests between different varsity teams at Brown. The First Circuit also rejected this argument, stating that the determinative factor in dealing with intra-class conflict is whether the conflict among members of Brown’s various women’s sports teams is “so substantial as to overbalance the common interests of the class members as a whole.” Here, the court found that the class representatives had sufficient common interests with the class as a whole to outweigh any intra-class conflict. Therefore, the First Circuit held that the class members were adequately representatives.

The objecting class members also argued that the terms of the settlement agreement were not “fair, reasonable, and adequate.” The First Circuit disagreed. The parties conducted extensive discovery and negotiated at arm’s length, and under these conditions, the court presumes that the settlement is reasonable. The First Circuit found that the 12 objecting class members failed to meet the high burden of overcoming this presumption.

The 12 objecting class members tried to appeal the First Circuits decision to the Supreme Court of the United States, but the Supreme Court denied certiorari in April 2022.

After the First Circuit affirmed the district court’s settlement order in January 2021, the parties began negotiating attorney’s fees and expenses. Following two mediation sessions with Magistrate Judge Sullivan, Brown agreed to pay class counsel $1,135,000 in attorney’s fees and $40,000 in litigation expenses. The district court issued its order reflecting this agreement on November 8, 2022.