Fourth Circuit Sides with JMU in Title IX Dispute

Sep 26, 2008

The 4th U.S. Circuit Court of Appeals has affirmed a lower court’s ruling denying a motion for a preliminary injunction, which would have halted the dismantling of several mostly men’s athletic programs at James Madison University until the court could consider a plaintiff’s discrimination claim.
In so ruling, the court found that the district court did not abuse its discretion in concluding that Plaintiff failed to meet the factors established in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).
The plaintiff in the instant case was Equity in Athletics, Inc. (EIA), a collection of 450 student athletes, coaches, parents, and fans, who believe JMU intentionally discriminated against male athletes in violation of the United States Constitution and in violation of Title IX of the Education Amendments of 1972 when it shuttered seven men’s athletic a programs a few years ago.
EIA specifically honed in on the Policy Interpretation issued by the secretary of Health, Education, and Welfare (HEW) in 1979 affiliated with Title IX which provides, in part, that: “Institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules, which equally reflect their abilities.” Further, the language states that one of the ways “compliance will be assessed” is “whether intercollegiate level participation
opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments. 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979).
“This provision,” wrote the court, “which also lists two other methods of compliance not at issue here, has come to be known as the ‘Three-Part Test.’ The DOE issued a Clarification to the 1979 Policy Interpretation in 1996, indicating that institutions needed to comply with only one part of the Three-Part Test; DOE issued a Further Clarification in 2003, expressing that the 1979 Policy Interpretation did not require reductions to men’s teams or the use of quotas; and it issued an Additional Clarification in 2005, reiterating that each part of the Three-Part Test was an equally sufficient and separate method of complying with Title IX.”
The court the recapped the events leading to the litigation, noting first that JMU is a state-sponsored university in Virginia and receives federal funds. “In an effort to comply with Title IX with respect to its athletic program, JMU’s Board of Visitors voted on September 29, 2006, to eliminate seven men’s sports (archery, cross country, gymnastics, indoor and outdoor track, swimming, and wrestling) and three women’s sports (archery, fencing, and gymnastics) to obtain proportionality between the gender makeup of its athletic programs and its undergraduate enrollment. At the time, JMU’s undergraduate population was divided 61 percent female and 39 percent male, while its student athletes were 51 percent female and 49 percent male. The proposed cuts relied on the first part of the Three-Part Test and were designed to put JMU’s student athlete population in a similar male/female ratio as its general student population.”
Frustrated with the ruling, the athletes, coaches, and fans formed EIA to fight the proposed cuts. EIA filed suit in federal court against the DOE, the Secretary of Education, the Assistant Secretary for Civil Rights, the United States, and various John Does on March 19, 2007. In general, the EIA challenged Title IX as permitting and encouraging colleges “to engage in the kind of gender-conscious decision-making that Title IX was intended to prohibit.”
EIA subsequently asked JMU to defer implementing the decision to cut the programs until EIA’s challenge to the federal guidelines was complete. JMU declined, and EIA amended its complaint to include JMU as a defendant on June 1, 2007.
EIA filed a motion for a preliminary injunction on June 15, 2007, addressed solely against JMU, seeking to prevent JMU from taking any additional steps to eliminate the targeted programs. After holding an evidentiary hearing, the district court denied the motion on August 21, 2007. See Equity in Athletics, Inc. v. Dep’t of Educ., 504 F. Supp. 2d 88 (W. D. Va. 2007). EIA appealed.
In considering the appeal, the 4th Circuit Court of Appeals wrote that the determining factors of whether to grant a preliminary injunction rest on: “(1) the likelihood of irreparable harm to the plaintiff if the injunction is denied; (2) the likelihood of harm to the defendant if it is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest.” (Blackwelder).
“Our court places the most emphasis on the first two factors, the balancing of the harms,” wrote the panel of judges, citing In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003). “If the balance is fairly equal, a stronger showing of likelihood of success is required. However, if the balance of harm tilts more decidedly toward the moving party, the party can meet the likelihood of success factor by raising questions about the merits that are sufficiently ‘serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.’ Id.”
The district court had honed in on whether there was a likelihood of success on the merits. “The district court,” wrote the panel, “recognized the harm to the student-athletes of not being able to compete in the sport and at the university of their choice, but it also noted that the student-athletes would not lose their scholarship funding if they chose to stay at JMU and that the students were free to transfer to other colleges offering their chosen sport, which some of the students had done, so that those athletes were still able to
compete at the college level.
“On the other side of the scale, the district court recognized the harm to JMU of not having control over which athletic programs it offered and the administrative difficulty and the cost to JMU of having to reinstate the eliminated programs. The court gave significant weight to the timing of EIA’s request for a preliminary injunction.”
The motion for a preliminary injunction was not filed until June 15, 2007, “a mere fifteen days prior to the date the cuts were scheduled to go into effect. In anticipation of the upcoming college year, coaches had already been terminated, competitions had been cancelled, and $350,000 in funding had been reallocated to other athletic programs.”
The panel concluded that, “in the end, there are no cases directly supporting EIA’s procedural challenges to the 1979 Policy Interpretations, and yet nearly every circuit in the country has rejected challenges similar to EIA’s underlying complaint against JMU, i.e., that JMU violated Title IX and the Constitution when it used gender to determine which athletic programs to cut. We agree with the district court that EIA has failed to establish a likelihood of success on its claims against JMU sufficient to entitle it to a preliminary injunction.”
Equity In Athletics, Inc. v. The United States Department Of Education et al.; 4th Cir.; No. 07-1914; 8/20/08
To review the opinion, visit:
Attorneys of Record: (for appellant) Lawrence John Joseph, Washington, D.C.; (for appellee) William Eugene Thro, Office of The Attorney General of Virginia, Richmond, VA; Thomas Mark Bondy, U. S. Department of Justice, Washington, D.C.


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