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Brown University’s recent choice of Ruth Simmons to be its next president was widely hailed in the world of academe. Simmons, who for the past five years has served as president of the nation’s largest women’s school, Smith College, is the first African American woman to head an Ivy League university. Largely unnoticed, though, is the fact that Simmons will be leading an institution that has waged almost unrelenting warfare against Title IX, the 1972 law that bans gender-based discrimination in schools and universities. For the past eight years, Brown has been battling a class action charging that its 1991 decision to cut school funding for women’s gymnastics and volleyball violated the law. Along the way, the Providence, R.I., school has engaged at least five law firms, including Latham & Watkins and Hale and Dorr; taken the case to trial and lost; appealed four times to the 1st U.S. Circuit Court of Appeals; and unsuccessfully sought certiorari from the U.S. Supreme Court. All this activity created groundbreaking case law — the 1st Circuit called Cohen v. Brown a “watershed case” — and defined schools’ obligations to support women’s athletics. The plaintiffs, meanwhile, were represented primarily by Lynette Labinger of Providence’s Roney & Labinger and Arthur Bryant of Trial Lawyers for Public Justice. While the underlying dispute was settled in 1998, with Brown agreeing to guarantee support for certain women’s teams, the university has steadfastly refused to pay the plaintiffs’ lawyers the $1.4 million in fees, costs, and interest that they’ve sought under the statute’s fee-shifting provision. In a 106-page filing, Brown belittled the plaintiffs’ lawyers as “self-appointed agents of social change” and blasted their fee petition as “bloated.” It maintains that the plaintiffs’ lawyers’ request should be slashed by two-thirds — to $540,392. The plaintiffs argue that their bill is hardly unreasonable, given the tenacious fight that Brown waged. In fact, they point out, the 5,306 hours that they logged (at an average rate of $179 an hour) was half the time billed by the university’s outside lawyers — this according to Brown’s own court filings. “I think our fees are very conservative,” says Labinger, who has yet to see any money for her eight years of work on behalf of former Brown student Amy Cohen and the rest of the class. (The fee petition is currently under review by a federal magistrate.) Beverly Ledbetter, Brown’s general counsel for 20 years, argues that Title IX does not require schools to maintain a ratio of men to women athletes reflective of the student body as a whole. While declining to reveal how much Brown spent on outside legal fees, Ledbetter asserts that it was less than the $950,719 in fees that the plaintiffs seek. If so, Brown was getting bargain basement rates. According to court filings, Brown’s outside lawyers logged 10,358 hours, with partners responsible for two-thirds of that time. If Brown had spent the same amount as the plaintiffs on attorneys’ fees, it would have paid an average of $91 an hour. Ledbetter notes that most of the work was done by less expensive firms, including Detroit’s Miller, Canfield, Paddock and Stone, which was lead trial counsel, and a local Providence firm. Aside from fees, Brown spent close to half a million dollars for experts and other expenses, according to court records. Ledbetter argues that men’s athletic programs nationwide have suffered in the wake of this case, as schools have been forced to cut programs to comply with Title IX. “Most schools don’t have a lot of money for athletics,” she says. Plaintiffs’ lawyer Labinger sees a different outcome: “This case has resulted in a substantial increase in opportunities for women, and I don’t believe it’s resulted in significant loss of opportunities for men.” Even Brown’s former president E. Gordon Gee has expressed regret about this fight. “I do not, candidly, think [this litigation] was a high point in our history,” Gee told the Providence Sunday Journal in 1998 after the underlying case settled. New president Simmons declined to comment on the case.

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