Athletics v. Dep't of Educ.

• Decision Date: 08 March 2011
• Docket Number: No. 10–1259.,10–1259.
• Citation: 639 F.3d 91
• Parties: EQUITY IN ATHLETICS, INCORPORATED, Plaintiff–Appellant,v.DEPARTMENT OF EDUCATION; Arne Duncan, Secretary of Education, in his official and individual capacity; Sandra Battle, Acting Assistant Secretary for Civil Rights, in her official and individual capacity; United States of America; James E. Hartman, Vice Rector, James Madison University, in his official and individual capacity; Jeffrey T. Bourne, Athletics Director, James Madison University, in his official and individual capacity; Mark T. Bowles, Visitor, James Madison University, in his official and individual capacity; Joseph F. Damico, Visitor, James Madison University, in his official and individual capacity; Ronald C. Devine, Visitor, James Madison University, in his official and individual capacity; Lois J. Forbes, Visitor, James Madison University, in her official and individual capacity; Charles H. Foster, Jr., Visitor, James Madison University, in his official and individual capacity; James Madison University; Stephen R. Leeolou, Visitor, James Madison University, in his official and individual capacity; Wharton B. Rivers, Jr., Visitor, James Madison University, in his official and individual capacity; Larry M. Rogers, Visitor, James Madison University, in his official and individual capacity; Linwood H. Rose, President, James Madison University, in his official and individual capacity; Judith Strickler, Visitor, James Madison University, in her official and individual capacity; Meredith Strohm Gunter, Rector, James Madison University, in her official and individual capacity; The Visitors of James Madison University; John Does, 1–200, in their official and/or individual capacity; John Doe, Entities 1–200; Vanessa M. Evans, Visitor, James Madison University, in her official and individual capacity; Joseph K. Funkhouser, II, Visitor, James Madison University, in his official and individual capacity; Elizabeth V. Lodal, Visitor, James Madison University, in her official and individual capacity; Fred D. Thompson, Jr., Visitor, James Madison University, in his official and individual capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

639 F.3d 91

267 Ed. Law Rep. 34

EQUITY IN ATHLETICS, INCORPORATED, Plaintiff–Appellant,

v.DEPARTMENT OF EDUCATION; Arne Duncan, Secretary of Education, in his official and individual capacity; Sandra Battle, Acting Assistant Secretary for Civil Rights, in her official and individual capacity; United States of America; James E. Hartman, Vice Rector, James Madison University, in his official and individual capacity; Jeffrey T. Bourne, Athletics Director, James Madison University, in his official and individual capacity; Mark T. Bowles, Visitor, James Madison University, in his official and individual capacity; Joseph F. Damico, Visitor, James Madison University, in his official and individual capacity; Ronald C. Devine, Visitor, James Madison University, in his official and individual capacity; Lois J. Forbes, Visitor, James Madison University, in her official and individual capacity; Charles H. Foster, Jr., Visitor, James Madison University, in his official and individual capacity; James Madison University; Stephen R. Leeolou, Visitor, James Madison University, in his official and individual capacity; Wharton B. Rivers, Jr., Visitor, James Madison University, in his official and individual capacity; Larry M. Rogers, Visitor, James Madison University, in his official and individual capacity; Linwood H. Rose, President, James Madison University, in his official and individual capacity; Judith Strickler, Visitor, James Madison University, in her official and individual capacity; Meredith Strohm Gunter, Rector, James Madison University, in her official and individual capacity; The Visitors of James Madison University; John Does, 1–200, in their official and/or individual capacity; John Doe, Entities 1–200; Vanessa M. Evans, Visitor, James Madison University, in her official and individual capacity; Joseph K. Funkhouser, II, Visitor, James Madison University, in his official and individual capacity; Elizabeth

v. Lodal, Visitor, James Madison University, in her official and individual capacity; Fred D. Thompson, Jr., Visitor, James Madison University, in his official and individual capacity, Defendants–Appellees.

No. 10–1259.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2010.Decided: March 8, 2011.

ARGUED: Lawrence John Joseph, Washington, D.C., for Appellant. Thomas Mark Bondy, United States Department of Justice, Washington, D.C.; William Eugene Thro, Christopher Newport University, Newport News, Virginia, for Appellees. ON BRIEF: Douglas G. Schneebeck, Modrall Sperling, Albuquerque, New Mexico, for Appellant. Tony West, Assistant Attorney General, Timothy J. Heaphy, United States Attorney, Barbara C. Biddle, United States Department of Justice, Washington, D.C., for Federal Appellees. Kenneth T. Cuccinelli, II, Attorney General of Virginia, E. Duncan Getchell, Jr., State Solicitor General, Stephen R. McCullough, Senior Appellate Counsel, Charles E. James, Jr., Chief Deputy Attorney General, John F. Knight, University Counsel, Office of the Attorney General, Richmond, Virginia, for James Madison University Appellees.Before GREGORY, DAVIS, and WYNN, Circuit Judges.Affirmed by published opinion. Judge DAVIS wrote the opinion, in which Judge GREGORY and Judge WYNN joined.

OPINION

DAVIS, Circuit Judge:

More than thirty years after Congress enacted a mandate for equal opportunity between the sexes in college athletics, this case reminds us that the realization of that congressional goal continues to pose myriad challenges to our nation's colleges and universities. Plaintiff–Appellant Equity in Athletics, Inc. (EIA), a membership organization comprised of student-athletes, coaches, parents, alumni, and fans, is a not-for-profit Virginia nonstock corporation. In this lawsuit seeking declaratory and injunctive relief, EIA challenges the Department of Education's (DOE) interpretative guidelines implementing the equal opportunity mandate of Title IX of the Education Amendments of 1972, Pub. L. 92–318, 86 Stat. 373, 20 U.S.C. §§ 1681–88 (Title IX). EIA alleges that the guidelines violate Title IX, the U.S. Constitution, and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. EIA also seeks relief against James Madison University (JMU), challenging JMU's 2006 decision to eliminate ten of the university's varsity athletic teams (seven men's teams and three women's teams), on the grounds that the elimination of those teams violates Title IX, the U.S. Constitution, and Virginia law. The district court granted defendants' motion to dismiss and dismissed the case; EIA has noted a timely appeal. For the reasons that follow, we affirm the judgment of the district court.

I.

We begin with a brief review of the statutory and regulatory background relevant to this case.

In 1972, Congress enacted Title IX, which provides in part that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. Title IX did not specifically address its application to athletics, and in 1974, Congress enacted the Javits Amendment, which directed the Secretary of Health, Education, and Welfare (“HEW”) to “prepare and publish ... proposed regulations which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.” Education Amendments of 1974, Pub. L. No. 93–380, § 844 (1974) (Javits Amendment).

On June 20, 1974, HEW published its proposed regulations implementing Title IX, containing provisions that addressed the statute's application to athletic programs. 39 Fed. Reg. 22,227, 22,236 (June 20, 1974). HEW followed notice and comment rulemaking procedures, and President Ford approved the final regulations, as required by Title IX, 20 U.S.C. § 1682.¹ Effective July 21, 1975, the regulations provided in part that “[a] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” 45 C.F.R. § 86.41(c). One of the ten factors used to determine equality of opportunity is “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” Id.

In December 1978, HEW issued a Proposed Policy Interpretation to provide further guidance for the 1975 regulations. 43 Fed. Reg. 58,070 (Dec. 11, 1978). After receiving numerous comments in response to its proposed interpretation, HEW issued a Final Policy Interpretation in December 1979. 44 Fed. Reg. 71,413 (Dec. 11, 1979). The Policy Interpretation aimed to supply guidance to educational institutions to “effectively accommodat[e] the interests and abilities of male and female athletes” and provided that compliance would be assessed “in any one of the following ways”:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

(3) Where the members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

Id. at 71,418. This provision has come to be known as the “Three–Part Test,” and its first prong is at the heart of EIA's claims in this case against DOE and JMU.

In 1979, Congress split HEW into the Department of Health and Human Services and the Department of Education. See Department of Education Organization Act, 20 U.S.C. §§ 3401–3510, Pub. L. 96–88 (1979). As part of that reorganization, HEW's functions with respect to educational programs were transferred to the Department of Education. 20 U.S.C. § 3441(a)(3) (transferring to DOE all functions of HEW's Office of Civil Rights, “which relate to functions transferred by this section”); see also N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 517 n. 4, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (“HEW's functions under Title IX were transferred ... to the Department of Education.”); McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 287 (2d Cir.2004) (noting that “we treat [DOE] as the administrative agency charged with administering Title IX”).

In 1996, after soliciting public comments on its proposal, DOE issued a clarification to the 1979 Policy Interpretation. The clarification provided that institutions need only comply with one part of the Three–Part Test and enumerated factors that would guide DOE's analysis of compliance under each part. Clarification of Intercollegiate Athletics Policy Guidance: The Three–Part Test (Jan. 16, 1996), transmitted by Letter from Norma V. Cantu, Assistant Secretary for Civil Rights, Department of Education (“1996 Clarification”), reprinted in J.A. 407–23 (guidelines provide “three individual avenues to choose from” in order to comply).

In 2003, DOE issued a Further Clarification, which reiterated that the 1979 Policy Interpretation did not mandate reductions to men's teams and noted that DOE disfavored the elimination of teams as a means of compliance. Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance (July 11, 2003), transmitted by Letter from Gerald Reynolds, Assistant Secretary for Civil Rights, Department of Education (“2003 Further Clarification”), reprinted in J.A. 424–26.

In 2005, DOE issued an Additional...