BOSTON — Calling on a federal appeals court to preserve the interests of present and future female athletes at Brown University at a time “when women’s rights are under attack,” a lawyer on Wednesday challenged the court to overturn a settlement reached last year in a landmark gender-equity case.

“Give the absent class members … their due,” Robert J. Bonsignore said in imploring the three-judge 1st U.S. Circuit Court of Appeals panel to reject a settlement agreement between the Ivy League school and former female athletes.

“They have no skin in the game,” Bonsignore, who represents 12 female athletes, said of the women who originally sued Brown in 1990s after the school cut several sports teams, including gymnastics.

U.S. District Court Chief Judge John J. McConnell Jr. in December signed off on the proposed settlement between Brown and female athletes who challenged the school’s move to cut five sports programs. The agreement called for the reinstatement of varsity women’s fencing and equestrian teams at Brown and brought to a close a decades-long gender discrimination lawsuit brought by the former female athletes. It also barred the elimination or reduction in the status of any women’s varsity team for at least the next four years.

In addition, it established August 2024 as the end date to a 1998 joint settlement in the landmark case, Cohen v. Brown, a class-action lawsuit credited with helping to even the playing field for men’s and women’s college sports nationwide. The original settlement required that the share of varsity sports opportunities for women at Brown must be within a fixed percentage of the share of women in the undergraduate student body.

“No one disputes that they did a great job. … We worshipped this case,” Bonsignore said. But, he said, “they dropped the ball at the end.”

He argued that the 1998 agreement must remain in place because Brown “cannot be trusted” to ensure gender equity in athletics.

He asked the appeals panel to send the case back to McConnell to further consider the interests of present and future female athletes at Brown.

But Lynette Labinger, who has been involved in the case for almost three decades, countered that the settlement serves both the short-term and the long-term interests of female athletes at Brown. It came after mediation before U.S. District Court Magistrate Judge Patricia A. Sullivan that was nothing short of a “miracle,” she said.

“We got them to restore two teams immediately,” Labinger said.

She said they concluded that ending the terms of the 1998 agreement would prove beneficial to women athletes at Brown going forward.

“We believe that the standards of Title IX have evolved,” she said. Marcella Coburn argued for Brown that McConnell’s approval of the settlement agreement should stand as a fair, reasonable and adequate resolution.

She rejected suggestions that Brown cannot be trusted, noting that McConnell specifically credited Brown President Christina H. Paxson for her commitment to gender equity.

“In my opinion, having reviewed the entire record and the settlement … I feel compelled to say that Brown President Chris Paxson got an undeserved bum rap in the public,”  McConnell, a Brown alum, said in December.

McConnell was referring to emails released in the course of discovery in the case that revealed a desire by some school officials to “kill this pestilential thing” in a way that wouldn’t rile up “the [Amy] Cohens of the world,” according to a legal filing by the American Civil Liberties Union Rhode Island affiliate and Public Justice, which represented the female athletes.

The case was one of four considered Wednesday by appeals court Chief Judge Jeffrey R. Howard and Judges Bruce M. Selya and Sandra L. Lynch.

Source: https://www.providencejournal.com/story/news/courts/2021/09/08/appeals-court-hears-arguments-landmark-brown-gender-equity-case/5768761001/