Cohen v. Brown University
| Decision Date | 22 December 1992 |
| Docket Number | Civ. A. No. 92-197-P. |
| Citation | 809 F. Supp. 978 |
| Parties | Amy COHEN, Eileen Rocchio, Nicole A. Turgeon, Karen A. McDonald, Melissa Kuroda, Lisa C. Stern, Jennifer Hsu, Jennifer E. Cloud, Darcy Shearer, Jody Budge, Megan Hull, Kyle Hackett, Each Individually and on Behalf of all Other Similarly Situated, Plaintiffs, v. BROWN UNIVERSITY, Vartan Gregorian, in his Official Capacity as President of Brown University, and David Roach, in his Official Capacity as Athletic Director of Brown University, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Lynette Labinger, Roney & Labinger, Amato A. DeLuca, Mandell, Goodman, DeLuca & Schwartz, Raymond A. Marcaccio, Blish & Cavanagh, Providence, RI, Arthur H. Bryant, Trial Lawyers for Public Justice, Washington, DC, Herbert B. Newberg, Sandra L. Duggan, Kronfeld, Newberg & Duggan, Philadelphia, PA, for plaintiffs.
Julius C. Michaelson, Jeffrey S. Michaelson, Beverly E. Ledbetter, Providence, RI, for defendants.
This is a class action lawsuit charging Brown University, its President, and its Athletic Director (collectively "defendants" or "Brown") with discriminating against women in the operation of its intercollegiate athletic program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. ("Title IX"). The plaintiff class consists 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.
Named plaintiffs include student members of the women's gymnastics and volleyball teams at Brown. For almost twenty years, these two teams were accorded full varsity status. In May 1991, however, Brown reduced these two women's teams, along with two longstanding men's varsity squads, to "intercollegiate club" status. Plaintiffs charge that Brown's demotion of the two women's teams has undermined their ability to compete in intercollegiate athletics and relegated the members of those teams to "second-class" status. More broadly, plaintiffs allege that Brown's actions have exacerbated the university's discriminatory treatment of women, particularly its continuing failure to provide women with equivalent "opportunities" to participate in intercollegiate athletics.
In two separate Orders, this Court previously granted plaintiffs' motion for class certification and denied defendants' motion to dismiss.1 Plaintiffs now move for a preliminary injunction. Specifically, they seek a preliminary order: (1) reinstating the women's gymnastics and volleyball teams to full varsity status; and (2) prohibiting Brown from eliminating or reducing the status of any other Brown-funded women's intercollegiate athletic teams unless the percentage of "opportunities" to participate in intercollegiate athletics equals the percentage of women enrolled in the undergraduate program.
The parties presented a total of fourteen days of testimony and twenty witnesses on the preliminary injunction motion. In addition, both sides have filed lengthy pre- and post-hearing briefs. After reviewing all of the evidence, and considering the arguments by both parties, I must grant injunctive relief, as specified at the conclusion of this opinion. Among other things, I direct Brown to immediately restore women's gymnastics and women's volleyball to their former status as fully funded intercollegiate varsity teams and to provide these teams with all of the incidental benefits accorded varsity teams at the university.
This case raises novel issues concerning Title IX and athletic programs. In addition, there is virtually no caselaw on point. For these reasons, I have undertaken to explore at great length the factual and legal context of this case, including a detailed examination of the U.S. Department of Education's official Policy Interpretation of the athletic regulation promulgated under Title IX.
First, I will discuss the varsity athletic program at Brown and the change in status of the four teams. Next, I will outline the legal and regulatory framework for athletic programs under Title IX. Finally, I will address the arguments advanced by both parties under the rubric of this Circuit's well-established preliminary injunction framework, emphasizing what I believe to be the Title IX standards applicable to this case.
Brown is a member of Division I of the National Collegiate Athletic Association ("NCAA"), the highest level within the NCAA structure. In academic year 1990-91, Brown funded a total of 31 varsity teams through its athletic department that participated in NCAA and other intercollegiate competition. Of these 31 teams, 16 were for men and 15 were for women. In eleven sports, Brown offered teams for both sexes:
Men and Women (1) Basketball (2) Crew (3) Cross-Country (4) Ice Hockey (5) Lacrosse (6) Soccer (7) Squash (8) Swimming (9) Tennis (10) Fall Track (11) Spring Track
The remaining sports were confined to either the men's or women's athletic programs. These teams consisted of the following:
Men Women
(1) Baseball (1) Field Hockey
(2) Football (2) Gymnastics
(3) Golf (3) Softball
(4) Water Polo (4) Volleyball
(5) Wrestling
In 1990-91, there were a total of 894 men and women undergraduates competing on these 31 varsity teams. Of this total, 566 were men (63.3%) men and 328 were women (36.7%). Plaintiffs' Exhibit 3.2 Records indicate that during this academic year, there were 2951 (52.4%) men and 2683 (47.6%) women enrolled as undergraduates at Brown. Plaintiffs' Exhibit 1.
Nearly all of the men's varsity teams were established before 1927. Baseball was created first in 1869, followed by football in 1878 and track in 1879. The only men's teams established after 1927 were crew in 1961, water polo in 1974 and squash in 1989. By comparison, virtually all of the women's varsity teams were created between 1971 and 1977. The only women's varsity team created after this period was winter track in 1982. Before 1971, all women's sports were operated out of a separate athletic program at Pembroke College, a sub-unit of Brown University until its merger with Brown College during that year. Before the merger, the women's athletic program at Pembroke bore no resemblance to the program which Brown provided to its male varsity athletes. While Pembroke did have a few intercollegiate teams (e.g., field hockey, basketball, tennis), the women's program received very little financial or institutional support from the university.
In May 1991, Brown cut off university funding for, and lowered the status of, 4 of the 31 varsity teams: men's golf, men's water polo, women's gymnastics and women's volleyball. Initially, these teams were dubbed "club varsity," but they were later classified as "intercollegiate club." The parties dispute the exact number of players affected by the demotion. In a pre-trial affidavit, defendant David Roach, Brown's Athletic Director, declared that the change in status affected 58 men and 20 women. Roach Affidavit at ¶ 11. However, in a memorandum to Brown's Advisory Committee on University Planning ("ACUP") dated April 9, 1991, Mr. Roach stated that the elimination of funding would affect approximately 34 men and 22 women. Plaintiffs' Exhibit 9. Plaintiffs argue that the cut eliminated 37 men and 23 women based upon 1990-91 team sizes reported by Brown to the NCAA. According to plaintiffs' data, the post-demotion totals, in 1991-92, were 529 men (63.4%) and 305 women (36.6%)
The decision to eliminate the four teams from varsity status was apparently made in response to a university-wide directive to cut 5% to 8% from the budget over several years, and at least 3% in the 1991-92 budget. By "unfunding" the four teams, Brown expected to realize a total savings of approximately $77,800 per year. Overall, the athletic department proposed a cut of roughly $115,500, or 2.7% of the department's total budget. Broken down by team, the $77,800 savings from the varsity cuts was apportioned as follows: (a) women's volleyball — $37,127; (b) women's gymnastics— $24,901; (c) men's water polo— $9,250; and (d) men's golf—$6,545. Plaintiffs' Exhibit 9.
After the four teams were reduced in status, they were permitted to participate in intercollegiate competition provided they raise all of their own operating funds from private sources and conform to NCAA and Ivy League rules. As the defendants note, all four teams successfully raised the necessary funds to compete in the 1991-92 and 1992-93 seasons. In addition, all four teams continue to be eligible for post-season tournament and championship events, and receive assistance from Brown in meeting Ivy League and NCAA guidelines for such participation.
Nevertheless, in addition to the elimination of university funding, the four teams lost significant privileges in the wake of the demotion. Evidence at the hearing indicates that during the 1991-92 and 1992-93 season, for example, incidents occurred during which varsity teams received priority over intercollegiate clubs in practice time and in access to medical trainers. The university also stripped the coaches of the women's teams of office space, long-distance telephone service and clerical support. Further, the four teams lost "admission preferences" in recruiting freshman. In April 1992, plaintiffs filed suit against Brown.
Title IX prohibits gender discrimination in education programs or activities receiving federal financial assistance. The statute provides in relevant part:
"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ..." 20 U.S.C. § 1681(a).
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