Eastern Michigan University has, for all intensive purposes, accused a federal judge of playing athletic director when it ordered the school to offer certain women’s sports programs as a way to comply with Title IX.
Specifically, EMU has asked the U.S. 6th Circuit Court of Appeals to block the district court’s order that would restart the tennis and softball programs, including hiring coaches by April 1.
“Title IX does not permit federal judges to serve as athletic directors.” EMU argued. “If the preliminary injunction stands, EMU will be forced to divert resources from the creation and expansion of other women’s sports programs that it believes offer greater opportunity for female student-athletes in a far more economically sustainable manner. These potential harms are even more acute because EMU faces severe budget issues. The injunction also offends the public interest in federalism and comity by substituting a federal judge’s views on how to run a university athletic department for those of the elected and appointed public officials responsible for the academic, financial, and general well-being of EMU.”
The district court ruling came less than a year after EMU eliminated four sports programs — Women’s Softball, Women’s Tennis, Men’s Swimming, and Men’s Wrestling. At the time, EMU President James Smith said the move was “necessary” due to budget issues and would result in a savings of approximately $2.4 million. Eighty-three athletes were affected, 58 males and 25 females. In June 2018, two of the female athletes filed a lawsuit, Marie Mayerova and Ariana Chretien v. Eastern Michigan University, James Smith (EMU President), Scott Wetherbee (EMU Athletic Director), and The Board of Regents, in federal court.
The aforementioned federal judge, the Hon. George Caram Steeh, drew the ire of EMU with a ruling over the winter in which he stepped into negotiations between the two sides, which had stalled. While the parties had agreed to reinstate the tennis program, the school was reluctant to bring back softball. Instead, it wanted to introduce lacrosse, which would cost less. Judge Steeh, who also ordered that the softball coach be in place by April 1, was unsympathetic to the university. In fact, she also put EMU on notice that more measures may be needed.
“Having determined that the elimination of the tennis and softball teams violated Title IX, and that Plaintiffs have demonstrated irreparable harm, the court emphasizes that the appropriate remedy is the reinstatement of those teams,” Judge Steeh wrote. “Indeed, given the current disparity between participation opportunities for men and women at EMU, the reinstatement of the tennis and softball teams represents only one step in the direction of the university’s compliance with Title IX.”
The appeal followed.
(Editor’s Note: The Analysis below was provided to the Alert (Vol. 15, Iss. 15) in an article more than two months ago by sports law professor Erica J. Zonder, J.D., M.S., an Assistant Professor of Sport Management at EMU.)
The Title IX Lawsuit
The Plaintiffs contend that the elimination of the sports is “entirely consistent with the manner in which Defendant EMU has discriminated against females in the past” (Mayerova v. Eastern Michigan, 2018, p. 1) and the action is being brought to redress “undisputed historic and ongoing discriminatory conduct” (p. 2). According to the plaintiffs, the elimination of Women’s Tennis is causing Mayerova, a tennis player, to face “Transfer Risks,” including visa issues, that are too great of an obstacle to overcome due to her being an international student athlete (p. 7). And, the elimination of Women’s Softball is causing Chretien, a softball player and aviation major, to be limited in her ability to transfer elsewhere due to her major being offered at very few schools.
The Plaintiffs are specifically alleging that EMU has not complied with the area of Title IX compliance (as set forth by the OCR Policy Interpretation) referred to as “effective accommodation of student interests and abilities” and the 3-prong test (p. 17). For a university to comply, they must (1) offer intercollegiate level participation opportunities for male and female students in numbers that are substantially proportionate to overall enrollment; or (2) show a history and continuing practice of program expansion for the underrepresented sex; or (3) demonstrate that the interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated by the present program (Bonnette, 2012). The plaintiffs also claim that EMU has violated the Equal Protection Clause of the 14th Amendment. The plaintiffs are bringing the action on behalf of themselves and on behalf of a class of all those similarly situated both now and in the future.
