Trial News

The First Circuit has upheld an agreement between Brown University and female student-athletes that settled the latest claims of gender discrimination following the university’s 2020 cuts to women’s varsity sports. The agreement modifies a landmark 1998 consent agreement and bars the university from eliminating any women’s teams for four years. (Cohen v. Brown U., 2021 WL 4987922 (1st Cir. Oct. 27, 2021).)

This latest victory for female student-athletes—who’ve seen cuts to university sports rise during the pandemic—comes with a lengthy history. In 1991, after Brown University demoted women’s gymnastics and volleyball from varsity status, female student-athletes filed a class action alleging violations of Title IX of the Education Amendments of 1972. In 1995, the Rhode Island federal district court found that Brown had violated Title IX by failing to accommodate the interests and abilities of female student-athletes effectively. After appeals, the parties entered a consent agreement in 1998. That agreement, which applied indefinitely, established a “proportional representation scheme” where the percentage of athletes of each gender must be between 3.5% and 2.25% of that gender’s overall undergraduate on-campus population. It also set forth a process for addressing compliance-related concerns and required Brown to submit an annual compliance report.

After 22 years without judicial intervention, problems arose in 2020. Brown, as part of an initiative to make its athletics programs more competitive overall, decided to eliminate certain varsity sports and to upgrade sailing—which is open to both men and women—to varsity status. It initially downgraded five women’s teams and six men’s teams from varsity status. However, after a “fierce backlash,” it restored men’s track, field, and cross country. The result was that twice the number of women’s sporting opportunities were cut. Female student-athletes and class representatives argued that this latest round of cuts violated the 1998 consent agreement.

After a September 2020 mediation under a magistrate judge, class counsel and the university agreed to an amended settlement agreement: The university would restore two women’s teams to varsity status. The amended agreement also barred the elimination or reduction in status of any women’s varsity team for at least the next four years.

This second provision—which created an August 2024 sunset for the entire consent agreement, brought some controversy. Twelve current members of Brown’s gymnastics and hockey teams objected to the amended agreement. They argued that the class representatives, who had graduated years ago, were not adequate representatives and that the agreement was not “fair, reasonable, and adequate.” But in a December 2020 fairness hearing, the Rhode Island district court rejected the class objectors’ arguments and approved the agreement.

The First Circuit, on appeal, looked to Federal Rule of Civil Procedure 23(e)(2) for the four factors the district court was required to consider in evaluating the amended agreement: whether “the class representatives and class counsel have adequately represented the class,” the agreement “was negotiated at arm’s length,” “the relief provided . . . is adequate,” and the agreement “treats class members equitably relative to each other.” And for the adequacy inquiry, the court looked to case law on Rule 23(a)(4)’s requirement that “representative parties will fairly and adequately protect the interests of the class.” This adequacy inquiry, the court found, is meant to “uncover conflicts of interest between named parties and the class they seek to represent.” (Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)). “Perfect symmetry of interest,” however, is not required, the court noted. (Matamoros v. Starbucks Corp., 699 F.3d 129 (1st Cir. 2012).)

The court then considered the objectors’ argument that class representatives could not adequately represent the interests of current and future Brown students because, having graduated years earlier, they “don’t have skin in the game.” Here, the court looked to a U.S. Supreme Court case, Sosna v. Iowa, which involved Iowa state residency requirements for those seeking a divorce. (419 U.S. 393 (1975).) Although the class representative, Carol Sosna, reached the one-year residency requirement while the case was pending and had already been granted a divorce, the Court found that Sosna was still an adequate class representative because “it was ‘unlikely’ that her interests would conflict with those of the class and because she had performed her representational duties ‘competently.’”

And in the case against Brown, the First Circuit said, although their claims were moot, “there is every reason to believe that the named class representatives are competent champions of the class’s cause.” The court pointed out that the representatives were the ones who “turned a spotlight on” gender inequity in sports at Brown, worked toward the initial consent agreement, and acted as “protagonists” after the latest round of sports cuts.

The First Circuit then considered the objectors’ argument that an intra-class conflict existed, because under the amended agreement, the current female student-athletes whose teams were being reinstated had an incentive to give up rights and benefits in return. In contrast, the objectors argued, those whose teams were not part of Brown’s latest cuts would prefer the agreement to be retained as-is, without the 2024 sunset. The court disagreed, pointing out that prior to the amended agreement, Brown had the power to strip any team of varsity status—and a meaningful limit on that power safeguarded all teams.

The court also rejected the objectors’ argument that the amended agreement’s terms were not “fair, reasonable, and adequate.” However, the First Circuit said, there is ample evidence that agreement was negotiated at arm’s length, and even the objectors have conceded that discovery was “amazing,” with six depositions, five expert reports, and thousand of pages of documents. In light of that, said the court, the objectors have a “steep uphill climb” to overcome the presumption that the agreement is reasonable. The court again noted the gains the objectors realized—the guarantee their sports would not face cuts for four years. But it also noted the development of Title IX case law since the initial 1998 consent agreement—while a 2.25% variance might have “passed legal muster in 1998, such a result is less certain today.” Abandoning the 1998 agreement may well leave Brown’s female student-athletes in a better place, because if the school makes more cuts in violation of Title IX, it could be held to today’s “more exacting Title IX regime,” said the court.

Providence, R.I., attorney Lynette Labinger, who represented the female student-athlete class, called the 1998 settlement “groundbreaking” but said that “other cases, over the years, have built on these early efforts. The measures for compliance have significantly evolved, in favor of the underrepresented athletes—almost always women.” She believes the compromise “provides both immediate and long-term demonstrable benefits to female student-athletes at Brown. While a very small fraction of the class members—less than 3%—thought otherwise, the trial court in 2020 and now the First Circuit have agreed that the compromise we achieved is fair, reasonable, and adequate.”