The 4th U. S. Circuit Court of Appeals has affirmed the dismissal of a lawsuit that challenged the decision of James Madison University (JMU) to eliminate seven men’s and three women’s varsity athletic teams in order to bring the school into compliance with Title IX.
The plaintiffs “failed to show how the Department’s three-part test exceeded the permissive statutory bounds. The test did not violate the Equal Protection Clause because achieving gender equality in college athletics was a compelling interest.”
In September 2006, the school announced that it was cutting 10 sports, blaming Title IX.
“I’m sure that athletes and their families will be disappointed, just as our coaches will,” said JMU President Linwood Rose at a press conference. “And they won’t be the only ones, because I think there are many other people who aren’t directly connected who are also going to be disappointed with the decision. The fact is, we had to comply with the law.”
At issue was the proportionality prong of Title IX, which requires that the percentage of the scholarships offered to female student athletes in the overall student-athlete population be in line with the percentage of female students in the overall student population. At JMU, the percentage of scholarships offered to female student athletes was 51 percent, while the percentage of female students was 61 percent.
School officials insisted that Title IX had forced its hand. Athletic Director Jeff Bourne noted at the time that “these 10 sports cost us about $550 thousand in a sports budget of $21 million. There’s no way we’re going to take all this heat and cause all the negative feelings for those affected athletes over $550 thousand.”
Those affected by the decision mobilized to challenge the decision, former Equity in Athletics, or Equity in Athletics Inc.
On March 19, 2007, EIA filed an action against DOE, the Secretary of Education, the Assistant Secretary for Civil Rights, and the United States, challenging Title IX’s interpretive guidelines. In particular, EIA asserted that DOE’s 1979 Policy Interpretation, i.e., the Three-Part Test, and its subsequent Policy Clarifications violated Title IX, the U.S. Constitution, and the APA. At about the time it filed suit against the federal defendants, EIA requested that JMU defer its proposed elimination of the 10 teams and, when JMU refused, EIA amended its complaint to join JMU and numerous JMU officials as defendants. EIA’s complaint sought declaratory and injunctive relief that would invalidate the allegedly unlawful guidelines and forestall JMU’s proposed team eliminations. In the alternative, EIA sought damages under Title IX to compel JMU to equalize scholarship payments to student-athletes affected by the alleged scholarship gap created by JMU’s decision to eliminate teams.
On June 15, 2007, EIA filed a motion for a preliminary injunction to prevent JMU from going forward with its plan to cut the athletic teams slated for elimination. The district court denied the motion for preliminary injunction, Equity in Athletics, Inc. v. United States Department of Education, 504 F. Supp. 2d 88 (W.D. Va. 2007), and we affirmed the district court, 291 Fed. Appx. 517 (4th Cir. 2008) (unpublished), cert. denied, 129 S. Ct. 1613, 173 L. Ed. 2d 993 (2009). Following the appeal of the denial of its motion for a preliminary injunction, EIA filed a second amended complaint, and the parties filed dispositive motions. On Dec. 30, 2009, the district court granted the defendants’ motions to dismiss and entered final judgment. EIA appealed.
Elaborating on its aforementioned reasons for affirming the lower court’s ruling, the panel wrote:
“First, EIA cites to no authority for the proposition that a scholarship allocation disparity of no more than 1 percent is required by DOE policy,” it wrote. “As with the participation gap, DOE has not specified a magic number at which substantial proportionality is achieved. Second, EIA fails to address whether and how this gap has changed in the years since the initial cuts were made. There is no dispute that some of the scholarship funds in 2007-08 went to ‘pay scholarships to former athletes on discontinued teams.’ However, that need would have been eliminated as those students graduated, no doubt reducing the scholarship gap created after the cuts were initially made.
“Finally, while the 11.94 percent disparity in scholarship allocation cited by EIA appears more substantial than the participation gap, the figure is based on the number of athletic slots at JMU, and not the number of individual athletes. For the 2007-08 academic year, for example, whereas each male athlete participated on only one team, a number of women athletes participated on more than one team such that there were actually only 240 individual female athletes compared to 196?should this be 296? male athletes. Based on the 240 actual female athletes—as opposed to female athletic slots—at JMU, women only received 4.10 percent fewer scholarship dollars than men. When calculated using individual athletes, the scholarship gap is substantially smaller than that claimed by EIA.”
Equity in Action v. Department of Education; 4th Cir.; No. 10-1259, 2011 U.S. App. LEXIS 4493; 3/3/11
Attorneys of Record: (for appellant) Lawrence John Joseph, Washington, D.C. and Douglas G. Schneebeck, MODRALL SPERLING, Albuquerque, New Mexico. (for appellees) William Eugene Thro, CHRISTOPHER NEWPORT UNIVERSITY, Newport News, Virginia.
For more background on this litigation, visit http://www.hackneypublications.com/sla/archive/000526.php
