Cohen v. Brown Univ.

• Decision Date: 27 October 2021
• Docket Number: No. 21-1032,21-1032
• Citation: 16 F.4th 935
• Parties: Amy COHEN et al., individually and on behalf of all others similarly situated, Plaintiffs, Appellees, v. BROWN UNIVERSITY et al., Defendants, Appellees, Abigail Walsh; Lauren Lazaro; Rose Domonoske; Mei Li Costa; Ella Poley; Alyssa Gardner ; Lauren Mckeown; Allison Lowe ; Tina Paolillo; Eva Durandeau; Madeline Stockfish; Sonja Bjornson, Objectors, Appellants.
• Court: U.S. Court of Appeals — First Circuit

16 F.4th 935

Amy COHEN et al., individually and on behalf of all others similarly situated, Plaintiffs, Appellees,

v. BROWN UNIVERSITY et al., Defendants, Appellees,Abigail Walsh; Lauren Lazaro; Rose Domonoske; Mei Li Costa; Ella Poley; Alyssa Gardner ; Lauren Mckeown; Allison Lowe ; Tina Paolillo; Eva Durandeau; Madeline Stockfish; Sonja Bjornson, Objectors, Appellants.

No. 21-1032

United States Court of Appeals, First Circuit.

October 27, 2021

Robert J. Bonsignore, with whom Lisa Sleboda, Bonsignore Trial Lawyers, PLLC, Anthony J. Gianfrancesco, and Gianfrancesco & Friedmann LLP were on brief, for objectors.

Lynette Labinger, with whom Arthur H. Bryant, Bailey & Glasser, LLP, Lori Bullock, and Newkirk Zwagerman were on brief, for plaintiffs.

Marcella Coburn, with whom Roberta A. Kaplan, Gabrielle E. Tenzer, Kaplan Hecker & Fink LLP, Robert Clark Corrente, and Whelan Corrente & Flanders LLP were on brief, for defendants.

Before Howard, Chief Judge, Selya and Lynch, Circuit Judges.

SELYA, Circuit Judge.

This landmark Title IX case does not come to us as a stranger. Shortly after a group of women student-athletes brought suit against Brown University (Brown) claiming gender discrimination with respect to the funding and operation of a panoply of varsity athletic programs, the district court certified a class and entered a preliminary injunction sought by the plaintiffs. See Cohen v. Brown Univ. (Cohen I ), 809 F. Supp. 978, 980, 1001 (D.R.I. 1992).

We upheld the issuance of the preliminary injunction, concluding (among other things) that the plaintiffs were likely to succeed in their suit. See Cohen v. Brown Univ. (Cohen II ), 991 F.2d 888, 904, 907 (1st Cir. 1993). After a bench trial, the district court found that Brown had violated Title IX by failing effectively to accommodate the interests and abilities of women athletes. See Cohen v. Brown Univ. (Cohen III ), 879 F. Supp. 185, 200, 211-14 (D.R.I. 1995).

When the district court rejected Brown's proposed compliance plan, Brown again appealed. We affirmed the district court's judgment in part, reversed it in part, and remanded for further proceedings. See Cohen v. Brown Univ. (Cohen IV ), 101 F.3d 155, 162, 188 (1st Cir. 1996). The parties subsequently consummated a settlement. That settlement, given bite by the imprimatur of the district court, has remained in effect for over two decades.

As time went by and circumstances changed, Brown unilaterally decided in 2020 to eliminate certain varsity sports and to upgrade sailing to varsity status (open to men and women). With this reshuffling on the table and renewed litigation in the offing, the parties opted to revisit all of the matters embodied in the court-approved settlement. Following protracted negotiations, ably coordinated by a magistrate judge, Brown and the class achieved a meeting of the minds and jointly moved for approval of a revised agreement (the Amended Settlement Agreement). But not all class members were pleased by the terms of the proposed amended settlement: some of them objected (the Objectors), complaining that the named plaintiffs were not adequate representatives of the class and that the settlement's terms gave parts of the class a raw deal. The district court held a fairness hearing and overruled the objections. The court, ruling from the bench, found that the proposed amended settlement was fair, reasonable, and adequate. Dismayed by the district court's approval of the Amended Settlement Agreement, the Objectors appealed.

We are mindful that — especially in institutional reform cases — class-wide relief must be adapted to reflect changing times and circumstances. One such circumstance, relevant here, is that the prophylaxis of Title IX has matured since the class-wide settlement was originally put in place. Another relevant circumstance is that, over a span of many years, Brown has demonstrated an increased awareness of and sensitivity to the constraints that Title IX imposes upon a university's varsity athletic programs. Last — but surely not least — striking the Title IX balance in a case of this kind is more an art, informed by experience, than a science. District courts are on the front lines when assessing class-wide relief and considerable deference is due to the exercise of their informed discretion. After careful consideration of the genesis of the litigation, its history and objectives, and Brown's evolving response to the demands of Title IX, we conclude that the district court's approval of the Amended Settlement Agreement was within the wide encincture of its discretion. Consequently, we affirm the judgment below.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the case starting with its historical roots and proceeding to its present-day posture.

A. The 1990s: Skirmishes and Settlement.

In 1991, Brown downgraded four athletic teams — women's volleyball and gymnastics, men's golf and water polo — from full varsity status to intercollegiate club status. See Cohen II, 991 F.2d at 892. The next year, several members of the women's volleyball and gymnastics teams sued Brown under Title IX and its implementing regulations, charging that — with respect to its athletic programs — Brown did not "effectively accommodate the interests and abilities of members of both sexes." Id. at 892-96 (quoting 34 C.F.R. § 106.41(c)(1) ). The district court certified a class of "all present and future Brown University women students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown." Id. at 893. The designated class representatives were women student-athletes then-enrolled at Brown. Those representatives — all of whom have long since graduated — remain the class representatives today, save for two who dropped out along the way. So, too, the original class counsel remain aboard.

In late 1992, the district court issued a preliminary injunction in favor of the plaintiffs. See Cohen I, 809 F. Supp. at 1001. Forced to "invade terra incognita" at an untrammeled "crossroads of the law," we affirmed. Cohen II, 991 F.2d at 893, 907. The district court subsequently held a trial on the merits. In the midst of trial, the parties reached a partial settlement regarding the disparate-funding portion of the plaintiffs' claims, and the district court approved that settlement. See Cohen III, 879 F. Supp. at 192-93. What remained were the claims of disparate participation opportunities. See id. At the end of the trial, the district court ruled that Brown had violated Title IX in that respect and ordered it to submit a compliance plan. See id. at 213-14.

Brown proposed to cut some men's varsity teams as a means of leveling the playing field between the sexes, but the district court rejected this proposal and instead ordered Brown to elevate and maintain specific women's teams. See Cohen IV, 101 F.3d at 162, 187. A divided panel of this court affirmed the district court's ruling that Brown was in violation of Title IX. See id. at 162. The panel majority also agreed with the district court that Brown's proposal was not "a good faith effort." Id. at 187. We nonetheless concluded "that Brown's proposal to cut men's teams [was] a permissible means of effectuating compliance with the statute" and, thus, "the district court was wrong to reject out-of-hand Brown's ... plan." Id. We remanded to give Brown another chance to come up with an acceptable compliance plan. See id. at 188.

In June of 1998, the parties reached a comprehensive settlement, dubbed the Joint Agreement, which the district court approved. In major part, that agreement locked in a proportional representation scheme: the percentage of each gender's athletes at Brown must lie within 3.5% or 2.25% (depending on the circumstances) of each gender's respective undergraduate campus presence. The Joint Agreement required Brown to submit a compliance report annually to class counsel. It also created a mechanism for the parties to exchange objections and replies concerning Brown's compliance or the lack thereof.

By its terms, the Joint Agreement was "indefinite in duration" and provided that the district court would "retain jurisdiction concerning interpretation, enforcement and compliance" with its stipulations.

B. The Latest Skirmish and Settlement.

For twenty-two years, Brown's athletes played on the turf of this Joint Agreement. Brown dutifully submitted its annual report each August. On the few occasions when issues surfaced, the parties resolved them without judicial intervention.

In May of 2020, a new era dawned. Christina Paxson, who had become Brown's president well after the fact and who was a defendant in the case by virtue of her office, announced the "Excellence in Brown Athletics Initiative" (the Initiative). With a view toward making Brown's programs more competitive overall, the Initiative purposed to downgrade five women's teams and six men's teams from varsity status to club status,¹ while elevating the women's sailing and co-ed sailing teams to varsity status. The planned hit to the men's track, field, and cross country teams, in particular, provoked a fierce backlash. In a June 6 public statement, President Paxson contended that simply restoring men's track, field, and cross country would place Brown in violation of the Joint Agreement. Nevertheless, Brown bowed to the pressure three days later: President Paxson announced that Brown would not downgrade the men's track, field, and cross country teams. It would achieve compliance with the Joint Agreement "for the time being" by making other (unspecified) programmatic "modifications."

The class representatives were not inclined to acquiesce. Through class counsel, they asserted that Brown was violating the Joint Agreement and moved for enforcement of the decades-old judgment and for emergency relief. Expedited litigation ensued. Each side engaged in document discovery, exchanged expert reports,...