A federal judge from Eastern District of Michigan has granted a request for a preliminary injunction made by two female Eastern Michigan University (EMU) athletes, who had sued the university, claiming it violated Title IX when it 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.
Separately, EMU was notified that the Office of Civil Rights (OCR) received a complaint and would be opening an investigation.
In the instant opinion, District Judge George Caram Steeh held that there is enough evidence that Eastern Michigan may not provide equal opportunities for female athletes. “The court finds that the public interest is best served by upholding the goals of Title IX,” he wrote. He also wrote that he could not, with the evidence provided, decide a reasonable outcome. Instead he ordered an Oct. 23 conference between EMU and lawyers for the two athletes.
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.
Count 1: Title IX
The plaintiffs claim that EMU fail to comply with each prong of the 3-prong test. In particular:
The ratio of female to male athletes at EMU is not substantially proportionate to the overall ratio of female to male undergraduate students at Defendant (Mayerova v. Eastern Michigan, 2018, p. 27). EMU’s female undergraduate enrollment rate is 60% while it’s female athletic participation rate is approximately 44% and it underreports male participation and overreports female participation (p. 28).
EMU does not have a history or continuing practice of athletics program expansion for women (p. 27). Defendant failed to meet the 1978 regulatory deadline for compliance and has not added any new female varsity sports in 10 years (p. 28).
EMU has failed to fully and effectively accommodate the athletic interests and abilities of its female students by, among other things, eliminating their opportunity to participate in varsity tennis and softball (p. 27). High school students also have the interest and ability to participate in tennis and softball, and competition exists as these sports are “major” NCAA sports that are also offered by other schools in the Mid-American Conference (“MAC”) (p. 28).
Plaintiffs seek expedited preliminary and permanent injunctive relief requiring Defendants to stop discriminating and ordering Defendant not to eliminate tennis, softball, or any other female team or opportunity. Plaintiffs also claim that due to Defendants’ discrimination, they will incur a loss of the benefits of athletic participation as well as associated economic and compensatory damages.
Count II: Equal Protection
As EMU is a public school, plaintiffs allege that EMU “acted under color of law” to deprive plaintiffs of their right to equal protection under the 14th Amendment by choosing to treat male and female athletes differently. Reducing the number of opportunities for females intentionally discriminates against females on the basis of sex (Mayerova v. Eastern Michigan, 2018, pp. 30-31). And further, plaintiffs will be harmed by Defendants’ conduct as they will “forever lose their opportunity to compete in their sport” (p. 31).
EMU’s Response to the Lawsuit
According to an EMU press release, the University filed a motion to stay the Title IX lawsuit pending the completion of the OCR investigation. The reasoning centered on the idea that both the Title IX complaint and the OCR complaint raised identical issues that are “uniquely within the expertise of the OCR (Kraft, 2018, para. 3). In the press release, EMU also said the decision to eliminate the sports was “extremely difficult” and that the “…action to reduce expenses in athletics (is) consistent with strategic reductions across the university (para. 5). EMU noted that they have one of the smallest budgets in the MAC, they had 21 sports before the cuts, which was more than any other school in the MAC, and that student-athlete scholarships were honored. EMU also noted that they still maintain 10 female teams and seven male teams.
The EMU motion to stay was denied on July 17, 2018 (Save EMU Sports, para. 1) with both sides being given additional time to submit further documentation.
The OCR Investigation
In a letter dated June 22, 2018, the OCR notified EMU President James Smith that it received a complaint that alleges that the “University is discriminating against female students on the basis of sex in intercollegiate athletics by not providing equal athletic opportunities for members of both sexes” (Redmond, 2018, para. 1) and that the OCR is opening the complaint for investigation. The OCR will be investigating “Whether the University’s selection of intercollegiate sports and levels of competition at the University effectively accommodates the interests and abilities of members of both sexes to the extent necessary to provide equal athletic opportunity for both sexes, as required by the Title IX implementing regulation at 34 C.F.R § 106.41(c)” (para. 3). Specifically, §106.41(c)(1) of the Title IX regulation was interpreted by the OCR in 1979 as “the accommodation of interests and abilities” which creates the 3-prong test under Section VII(C)(5) (Bonnette, 2012, pp. 1, 12). EMU was given fifteen calendar days to submit all requested information, including student surveys from the past 10 years and any other assessments of student interests and abilities with respect to athletic participation, any policies or procedures under which students can request that a sport be added and whether there have been any such requests, enrollment numbers, participation numbers, plans of program expansion, club/intramural sports, and other documentation. EMU has stated that they will cooperate fully with the investigation (Kraft, 2018, para. 1).
References
Bonnette, V.M. (2012). 1979 Intercollegiate Athletics Policy Interpretation. Retrieved from http://titleixspecialists.com/wp-content/uploads/2013/09/1979-Intercollegiate-Athletics-Policy-Interpretation-Summary-and-Full-Text.pdf
Jesse, D. (2018, March 20). Eastern Michigan University budget woes prompt cutting of 4 sports programs. Detroit Free Press. Retrieved from https://www.freep.com/story/news/local/michigan/2018/03/20/eastern-michigan-university-budget-woes-prompt-cutting-4-sports-programs/440893002/
Kraft, W. (2018, July 10). Statement regarding Title IX investigation by the Office of Civil Rights and motion to stay Title IX lawsuit. Retrieved from https://today.emich.edu/story/statement/10733
Mayerova and Chretian v. Eastern Michigan University, James Smith, Scott Wetherbee, and The Board of Regents. No. 2:18-cv-11909, complaint. (E.D. Mich. June 15, 2018). Retrieved from
https://www.courthousenews.com/wp-content/uploads/2018/06/EMU-TitleIX.pdf
Redmond, B. (2018, June 22). OCR Letter to Dr. James Smith. OCR Docket No. 15-18-2149. Retrieved from https://www.scribd.com/document/383581368/OCR-Investigation
Save EMU Sports, (2018, July 17). @saveEMUsports. Retrieved from https://twitter.com/saveEMUsports?lang=en
