Federal Judge Strikes Down Anti-Title IX Lobbying Group’s Motion in JMU Case

Sep 28, 2007

A federal judge has denied an anti-Title IX lobbying group’s motion for a preliminary injunction against James Madison University, clearing the way for the school to move on after shuttering 10 sports programs in a self-proclaimed effort to comply with Title IX.
Among the reasons for the court’s ruling was the harm a preliminary injunction would cause the school, given that it had already terminated the coaches, cancelled contest dates and facilitated the transfer of student athletes.
When the cuts were announced in the fall of 2006, athletic department officials pointed to 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, at the time, that Title IX had forced its hand. Athletic Director Jeff Bourne noted that “these 10 sports cost us about $550,000 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 $550,000.”
The school’s decision led to Equity in Athletics, Inc. — a not-for-profit Virginia nonstock corporation, whose members include coaches, student-athletes, fans, booster clubs, parents, save-our-sport groups, and/or alumni, affiliated with certain Virginia colleges and universities, including JMU — to seek declaratory and injunctive relief to vacate the allegedly unlawful guidelines and to require the United States Department of Education to issue new rules consistent with Title IX and the Constitution.
Subsequent to the filing of this action, according to the federal court, Equity amended its complaint to include JMU and certain JMU officials as defendants and to directly challenge JMU’s decision to eliminate 10 athletic programs. Equity alleged that “the decision to eliminate the men’s swimming and diving, track and field, cross country, and wrestling programs impermissibly discriminates against men, in violation of Title IX, the Equal Protection Clause of the Fourteenth Amendment, the Constitution of Virginia, and the Virginia Human Rights Act.”
Equity further alleged that “the decision to eliminate the men’s and women’s archery and gymnastics programs, and the women’s fencing program, constitutes arbitrary discrimination in violation of the substantive due process protections of the Constitution of the United States and the Constitution of Virginia.”
In addition to filing an amended complaint, Equity filed a motion for preliminary injunction, directed solely at JMU, seeking to prevent the university from taking additional steps to eliminate the aforementioned athletic programs, which is the issue being addressed in the instant opinion.
In considering the motion, the court noted that the 4th Circuit Court of Appeals uses a test set forth in Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977), which requires courts to consider four factors: (1) the likelihood of irreparable harm to the plaintiff if preliminary injunctive relief is denied; (2) the likelihood of harm to the defendants if the requested relief is granted; (3) the plaintiff’s likelihood of succeeding on the merits of the action; and (4) the public interest. Direx Israel, Ltd., 952 F.2d at 812; see also Blackwelder, 550 F.2d at 193-95.
The court wrote that both sides demonstrated that they would be harmed if the court ruled for the other party. “While the harms identified by Equity may indeed be more emotionally compelling, the court is unable to conclude that the balance of hardships ‘tilt[s] decidedly’ in favor of Equity. Consequently, ‘a strong showing of likelihood of success’ on the merits is required.”
In addressing Equity’s likelihood of success on the merits, the court wrote that it “must first recognize that a number of Circuits have addressed many of the same issues raised by Equity, namely whether the Three-Part Test set forth in the 1979 Policy Interpretation violates Title IX or the applicable regulations; whether the Three-Part Test is entitled to deference; and whether the proportionality prong of the Three-Part Test offends constitutional principles of equal protection.
“‘Every court, in construing the Policy Interpretation and the text of Title IX, has held that a university may bring itself into Title IX compliance by increasing athletic opportunities for the underrepresented gender (women in this case) or by decreasing athletic opportunities for the overrepresented gender (men in this case).’ Neal v. Bd. of Tr. of the Cal. State Univ., 198 F.3d 763, 769-770 (9th Cir. 1999); See also:
Cohen v. Brown Univ., 991 F.2d 888, 898 n.15 (1st Cir. 1993) (‘Title IX does not require that a school pour ever-increasing sums into its athletic establishment. If a university prefers to take another route, it can also bring itself into compliance with the first benchmark of the accommodation test by subtraction and downgrading, that is, by reducing opportunities for the overrepresented gender while keeping opportunities stable for the underrepresented gender (or reducing them to a much lesser extent).’);
Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir. 1993) (‘We recognize that in times of economic hardship, few schools will be able to satisfy Title IX’s effective accommodation requirement by continuing to expand their women’s athletics programs . . . . Financially strapped institutions may still comply with Title IX by cutting athletic programs such that men’s and women’s athletic participation rates become substantially proportionate to their representation in the undergraduate population.’);
Kelley v. Board of Trustees, 35 F.3d 265, 272 (7th Cir. 1994) (‘And despite plaintiffs’ assertions to the contrary, neither the regulation nor the policy interpretation run afoul of the dictates of Title IX.’);
Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 615 (6th Cir. 2002) (holding that the decision to eliminate men’s athletic programs did not violate Title IX, since ‘[t]he statute focuses on opportunities for the underrepresented gender, and does not bestow rights on the historically overrepresented gender, and it is well-established that classification by gender is not a per se violation of Title IX’);
Chalenor v. Univ. of North Dakota, 291 F.3d 1042 (8th Cir. 2002) (‘[A]lthough Title IX does not require proportionality, the statute does not forbid it either. And the gender make-up of athletic participation is certainly relevant to a determination of whether a school is in compliance with Title IX.’).
The court went on to note that every Circuit, in reviewing the Three-Part Test set forth in the 1979 Policy Interpretation, has concluded that it is entitled to “substantial deference, since it is an agency’s considered interpretation of its own regulations.” See Cohen I, 991 F.2d at 896-897; Roberts, 998 F.2d at 828; Kelley, 35 F.3d at 271; Cohen v. Brown University, 101 F.3d 155, 173 (1st Cir. 1996); Neal, 198 F.3d at 770; Miami Univ. Wrestling Club, 302 F.3d at 615.
“Likewise, every Circuit, which has considered the constitutionality of the proportionality prong of the Three-Part Test, has held that it does not offend constitutional principles of equal protection.”
Similarly, the court disagreed with Equity’s argument that the proportionality prong of the Three-Part Test establishes a disparate-impact standard, and that, pursuant to Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001), the standard exceeds the scope of the DOE’s authority under Title IX. In Sandoval, the Supreme Court solely addressed “the question [of] whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964.” Sandoval, 532 U.S. at 278. The Court specifically indicated that it was not inquiring as to whether the regulations were authorized by Title VI, Id. at 279, and ultimately assumed for purposes of the case that the regulations at issue were valid, Id. at 281-282. “Consequently, the court is unable to conclude, on the basis of Sandoval, that Equity’s argument regarding the alleged lack of authority for the Three-Part Test has a strong likelihood of success. See National Wrestling Coaches Ass’n v. Dept. of Education, 361 U.S. App. D.C. 257, 366 F.3d 930, 946 (D.C. Cir. 2004) (distinguishing the same argument advanced by Equity from the argument at issue in Sandoval).”
One by one, the court went on to refute the plaintiff’s other arguments, concluding that none of the claims are likely to succeed on their merits.
Turning the final factor — public interest – the court wrote that it “is not unsympathetic to the plight of the members of the athletic programs that were chosen for elimination by JMU’s Board of Visitors. These students are innocent victims of Title IX’s benevolent attempt to remedy the effects of past discrimination against women, and JMU’s efforts to comply with Title IX. Nonetheless, the court finds that the final factor, the public interest, ‘weighs in favor of permitting colleges and universities to chart their own course in providing athletic opportunities without judicial interference or oversight, absent a clear showing that they are in violation of the law.’ Gonyo, 837 F. Supp. at 996.”
It went on to conclude “that none of the factors set forth in the Blackwelder test favor granting a preliminary injunction. Accordingly, Equity’s motion for preliminary injunction must be denied.”
Equity in Athletics, Inc. v. Department of Education, et al.; W.D. Va.; Civil Action No. 5:07CV00028, 2007 U.S. Dist. LEXIS 61211, 8/21/07
Attorneys of Record: (for plaintiff) Douglas Gene Schneebeck, LEAD ATTORNEY, MODRALL SPERLING ROEHL HARRIS & SISK, PA, ALBUQUERQUE, NM US; Lawrence John Joseph, LEAD ATTORNEY, LAW OFFICE OF LAWRENCE J. JOSEPH, WASHINGTON, DC US; Thomas Harlan Miller, LEAD ATTORNEY, FRANKL MILLER & WEBB LLP, ROANOKE, VA. (for defendant U.S.) Margaret Spellings, Secertary of Education, in her official and individual capacity, Stephanie Monroe Johnson, Assistant Secretary for Civil Rights, in her official and individual capacity, United States Of America, Defendants: Marcia Berman, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC. (for defendant James Madison University) John Fredrick Knight, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, RICHMOND, VA US; Ronald C. Forehand, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, RICHMOND, VA; William Eugene Thro, LEAD ATTORNEY, STATE SOLICITOR GENERAL OFFICE OF THE ATTORNEY GENERAL, RICHMOND, VA.


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