In a case that straddles the boundary between law and ethics, this month a federal judge denied the issuance of a preliminary injunction that would have reinstated Women’s and Men’s Varsity Squash. However, the judge also ruled that the athletes do have a valid contract claim against Brown for failure to fulfill its recruitment obligation. In other words, a final decision will not be rendered until the court reconvenes later this year for a full trial on the contract issue. While the court declined to find that the squash players will face irreparable harm from failing to be reinstated, this episode affirms what we have always known: Simply because an action is deemed legal does not make it right.
This past spring, Brown announced the elimination of Men’s and Women’s Squash alongside nine other varsity teams under the guise of its “Excellence in Brown Athletics Initiative.” By any measure, this initiative has been an unmitigated disaster. Brown’s actions have spawned two lawsuits, and the resultant public outcry has forced the reinstatement of five of 11 eliminated teams and all but 64 of the original 209 affected athletes. More importantly, Brown’s shoddy decision-making demonstrates a disregard for gender equity, racial justice, transparency and basic human kindness. Although Brown has the legal right to alter its athletic programs, there is no doubt that what the administration did was unethical, inconsistent with Brown’s values and just plain wrong.
The architects of this plan still sit atop Brown’s administration. We witnessed Chancellor Samuel Mencoff ’78 P’11 P’15 referring to the Consent Decree issued in the landmark Cohen v. Brown gender equity case as “this pestilential thing.” President Christina Paxson P’19 stated that any attempt to change the Cohen v. Brown Consent Decree “could rile up the (Amy) Cohens of the world.” Does Chancellor Mencoff care more about Ivy League victories than gender equity? Does Christina Paxson not recognize that it is the “(Amy) Cohens of the world” that are partially responsible for a woman’s right to hold the Presidency of an Ivy League institution or to chair the Federal Reserve Bank of Boston? Where is the indignation of the 54 members of the Brown Corporation? Why did not one member of the Corporation Board raise their hand in public opposition to this failed Initiative and the outrageous decision to aggressively pursue an expensive legal defense involving multiple law firms and the exceptional expenditure of time required to defend this Initiative?
Though the administration contends that the teams selected for elimination were chosen through a well-designed, fact-based analysis, court testimony indicates otherwise. The process was determined by a simplistic and overly subjective criterion designed by Jack Hayes, Christina Paxson and Kevin Mundt ’76 P’11 with minimal information about the teams they decided to eliminate or any assessment of the potential for collateral damage. A major criterion for elimination was a team’s Ivy League record, while a team’s national standing was ignored (the squash teams are among the nations’ highest-ranked). Despite President Paxson’s supposed concerns about financial resources, team budgets were not considered. Indeed, testimony revealed that the two squash teams cost the University $0 to support because Varsity Squash has one of the more significant donor-funded endowments within the Athletics Department.
Despite a supposed focus on competitiveness, no attempt was made throughout the committee’s investigatory process to understand why specific teams fare worse than others in Ivy League competition (not that any of Brown’s teams do very well), nor was any attempt made to compare resources, coaching talent and recruitment practices throughout the League. Deposition testimony revealed that AD Hayes and President Paxson were unaware of League recruitment rules. Decisions were not only made with insufficient facts; they also unfairly favored certain teams over others. In his sworn deposition, Hayes acknowledged that he inflated the evaluation of Brown’s football team contrary to their hired consultant’s recommendation. Further, a decision to eliminate Varsity Tennis was reversed when two Brown Corporation members, friends of the Varsity Tennis program, bitterly complained after receiving a preview of the recommendations. As Varsity Tennis can attest, it helps to have friends in high places.
In the most recent US News and World Report of “America’s Best Colleges,” Brown is ranked second to last among its Ivy League peers and, while not exclusive to Paxson’s tenure as President, Brown has been at or near the bottom of the Ivy League pack for decades. Should we use this simplistic Ivy League statistic as a reason to change the leadership of the University? If Brown’s academic standing were elevated above its Ivy peers, we would attract better athletes and be more competitive within the League.
While President Paxson claimed that her primary concern was for the athletes impacted by the Initiative, her sworn deposition makes it clear that she never developed the written plan to support affected student-athletes as initially proposed. Since Brown’s announcement of the cuts on May 28, President Paxson has steadfastly refused to meet with representatives of Brown’s Squash Teams.
This Initiative has been a disaster in part because the administration has failed to build a broad consensus on athletics. In contrast, one need only look to Harvard’s recent study of its athletic program. Paxson has said that Brown cannot compete with the resources available to Harvard Athletics. Is this any wonder given President Paxson’s unwillingness to consider opinions different from her own and her failure to engage a broad cross-section of the athletic community, as Harvard did, on issues that directly impact them? Soliciting input goes beyond cashing the checks of grateful alumni.
Brown’s “spin” of the latest Title IX Settlement would have us believe that it was an endorsement of the Excellence in Athletics Initiative and the University’s vindication. It was no such thing. The settlement effectively places Brown on a four-year probation, during which time it will not have the freedom to do whatever it wants with its lineup of varsity teams. Now that Brown has been released from the 1998 Cohen Consent Decree, it will be obligated to comply with a less forgiving standard of compliance; the current case law on the issue suggests even more stringent guidelines have evolved over the last 23 years. Brown would be well advised to study the court decision in Biediger, et al. v. Quinnipiac University.
Sadly, this is not over. Brown currently lists 33 varsity teams on its website, but in a draft charge to her secret athletic committee, President Paxson asked its members to look at reducing the number of varsity teams to between 23 and 27. Paxson did not detail how or what metrics she used to arrive at that number, only that the objective was to be “bold.” President Paxson, how bold will you be: Will ten more teams be eliminated when the court-approved settlement unshackles the University from the Cohen Consent Decree? In what will be a pall on future athletic recruiting, Brown has argued that recruitment letters represent no obligation to prospective varsity recruits and that they are free to eliminate sports even as recruits are enrolling.
While certainly the University has the right to evaluate and make changes to its athletic program in a well-reasoned and compassionate manner, Brown University should set a higher standard next time, consider the commitments it has made to its students and strive to do what is ethical and right, not just what is legal.
Michael Champa P’21 is a parent of a squash player affected by the Excellence in Athletics decision and can be reached at michael.champa@comcast.net. The views expressed in this opinion are his own. Please send responses to this opinion to letters@browndailyherald.com and op-eds to opinions@browndailyherald.com.
ADVERTISEMENT
