The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "Title IX continues to have strong influence over college sports."

Prior to the enactment and enforcement of Title IX, there was a significant imbalance between the amount of men and women student-athletes.

For example, in 1972, for every female NCAA student-athlete, there were approximately five male NCAA student-athletes. Although Title IX was not originally concerned with athletics specifically, it was quickly realized that Title IX could be utilized to eliminate this significant disparity.

Title IX is arguably the most progressive legislation to promote gender equality in sports. However, some educational institutions struggle with Title IX, as its strict requirements sometimes lead to financial losses.

The overall goal of Title IX is to promote equality within the United States educational system. To ensure this goal is met, Congress appointed the Department of Education, and specifically the Office of Civil Rights, or OCR, to enforce Title IX. In 1975, the federal government drafted and codified the regulations regarding Title IX.

Among these regulations is 34 CFR Sec.106.41, which explicitly prohibits discrimination based off one’s sex in any interscholastic, intercollegiate, club, or intramural athletics. These regulations specify that educational institutions must provide equal athletic opportunities for members of both sexes.

To demonstrate that equal opportunities in athletics are present, one of the following must be shown by the respective educational institution: (1) athletic opportunities for women and men is at a proportionate rate to the institution’s rate of enrollment; (2) opportunities for the underrepresented sex are increasing as their interests and abilities evolve; or (3) the institution fully accommodates the underrepresented sex by offering every team for which there is sufficient interest and ability for a viable team and there is sufficient competition in the geographic areas where the institution normally competes. 44 Fed. Reg. 71, 413, 423 (1979); see Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996).

If an educational institution fails to demonstrate one of these three scenarios, it can be found non-compliant with Title IX and have substantial damages imposed upon it, or at the very worst, lose all federal funding. Because of these potential financial consequences, educational institutions will generally make significant efforts to be and stay compliant with Title IX.

Nonetheless, some educational institutions have found themselves in litigation for not diligently complying with Title IX. One of these institutions is Ivy League member Brown University.

In the 1990s, Brown announced that it was cutting four varsity sports teams for financial reasons. In response to this decision, a member of the women’s gymnastics team and several other Brown University student-athletes filed suit against the university, alleging these cuts violated Title IX. Subsequently, the 1st U.S. Circuit Court of Appeals applied the three-prong test referenced above and found that Brown failed to satisfy any of the three compliance criteria. Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996).

After the U.S. Supreme Court rejected Brown’s appeal, the university ultimately settled the case in 1998. This settlement included an agreement that the university would ensure that there was no less than a 2.25% difference between the percentage of women varsity athletes and women full-time undergraduates.

Twenty-two years later, Brown announced in May that it planned to demote six men’s and five women’s varsity teams to club status. This announcement raised Title IX concerns for Brown University once again.

Brown stated that these cuts were not a reaction to the COVID-19 pandemic, but instead was a decision made after the school conducted an in-depth assessment of its varsity teams. The factors they considered included existing strengths of each team, roster sizes, and the quality of facilities that are available for these teams to practice and compete. Furthermore, the announcement explicitly stated that these cuts would not lead to Brown violating the 1998 settlement agreement

Nonetheless, attorneys from Public Justice and the ACLU of Rhode Island reviewed Brown’s plan, and they believed it violated the 2.25% requirement established in the 1998 settlement agreement.

Specifically, these attorneys claimed that the male-to-female ratio changes for the following school year cannot comply with the 1998 settlement agreement based off of Brown’s 2019-20 enrollment data.

Accordingly, the 1998 settlement agreement was brought before the court once again, and Public Justice and the ACLU filed a motion seeking an injunction to stop Brown University’s implementation of the program cuts based on the fact that the plan would violate the 1998 settlement agreement.

Brown University argued that the plan did not violate any provision of the 1998 settlement agreement, claiming that the agreement fails to provide any mechanism for plaintiffs to assert a prospective violation for a future academic year.

In addition to the dispute regarding the construction of the 1998 settlement agreement, Public Justice and the ACLU also believe that Brown’s alleged violation of the agreement was a conscious decision. Although Brown would argue otherwise, emails from Brown officials disclosed during this litigation seemed to indicate intention.

Specifically, Brown University’s chancellor sent the following email to the university’s president, “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?”

The emails, as well as the alleged violation of the 1998 settlement agreement can certainly lead one to believe that Brown’s federal funding was at risk. It appears that Brown recognized this risk because the university recently settled the litigation.

On Sept. 17, Brown University announced, “[Brown] University secures settlement in Cohen v. Brown that sets a 2024 end date to agreement that has hindered competitive varsity athletics for women and men at Brown, while agreeing to return two women’s teams to varsity status.”

Some important terms of the settlement are as follows: (1) women’s equestrian and at least one additional women’s team that was demoted to club status will have it varsity status restored; (2) if Brown University restores any men’s team to varsity status before Aug. 31, 2024, the total number of women’s teams that are restored to varsity status must be at least two greater; and (3) the term of this agreement as well as the 1998 settlement agreement will expire on Aug. 31, 2024.

The history of Brown University and its handling of Title IX compliance in athletics demonstrates the power and influence this legislation has on the U.S. educational system. Brown University has challenged Title IX multiple times, and each time, it has found itself settling. Although Title IX compliance may not be optimal for an institution’s finances, the federal government continues to make it clear that gender equality in sports will be prioritized over profitability.

Team Members: