Equity in Athletics, Inc. v. Department of Education

Citation675 F.Supp.2d 660
Decision Date30 December 2009
Docket NumberCivil Action No. 5:07CV00028.
PartiesEQUITY IN ATHLETICS, INC., Plaintiff, v. DEPARTMENT OF EDUCATION, et al., Defendants.
CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
675 F.Supp.2d 660
DEPARTMENT OF EDUCATION, et al., Defendants.
Civil Action No. 5:07CV00028.
United States District Court, W.D. Virginia, Harrisonburg Division.
December 30, 2009.

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Douglas Gene Schneebeck, Modrall Sperling Roehl Harris & Sisk, PA, Albuquerque, NM, Lawrence John Joseph, Law Office of Lawrence J. Joseph, Washington, DC, Thomas Harlan Miller, Frankl Miller & Webb LLP, Roanoke, VA, for Plaintiff.

Marcia Berman, Susan K. Ullman, United States Department of Justice, Washington, DC, John Fredrick Knight, James Madison University, Harrisonburg, VA, Ronald C. Forehand, Office of the Attorney General, William Eugene Thro, State Solicitor General, Office of the Attorney General, Richmond, VA, for Defendants.


GLEN E. CONRAD, District Judge.

The plaintiff, Equity in Athletics, Inc. (EIA), is a not-for-profit nonstock corporation, whose members include student-athletes, coaches, fans, booster clubs, parents, and alumni affiliated with several Virginia colleges and universities, including James Madison University (JMU). In this action for declaratory and injunctive relief, EIA challenges interpretive guidelines implementing Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681-1688, on the grounds that they violate Title IX, the Constitution of the United States, and the Administrative Procedure Act. EIA further claims that JMU violated Title IX, the Constitution of the United States, and Virginia law by eliminating ten of its varsity athletic teams in 2007. The case is presently before the court on motions to dismiss filed by the defendants, as well as a motion for summary judgment filed by EIA. For the reasons that follow, the defendants' motions will be granted and EIA's motion will be dismissed as moot.

Statutory and Regulatory Background

I. Title IX

"Title IX was Congress's response to significant concerns about discrimination against women in education." Neal v. Bd. of Tr. of the Cal. State Univ., 198 F.3d 763, 766 (9th Cir.1999). Enacted in 1972, Title IX provides 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(a).

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Section 1682 of Title 20 authorizes and directs each federal agency empowered to extend federal financial assistance to an educational program to promulgate "rules, regulations, or orders of general applicability," for approval by the President, which ensure the program's compliance with Title IX's anti-discrimination mandate. 20 U.S.C. § 1682. If an educational program that receives federal financial assistance fails to comply with a requirement adopted pursuant to § 1682, the remedy for such non-compliance can include termination of or refusal to grant or continue federal financial assistance to that program. Id.

"After Title IX was passed, there were efforts to limit the effect of the statute on athletic[] programs." McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 287 (2d Cir.2004). In 1974, Senator John Tower proposed an amendment that would have exempted revenue-producing intercollegiate sports from Title IX's coverage. Id. (citing 120 Cong. Rec. 15,322-15,323 (1974)). That amendment, however, was not enacted. Id. Instead, "[l]ater that year, Congress enacted a provision known as the Javits Amendment, which specifically instructed the Secretary of Health, Education, and Welfare ("HEW") to `prepare and publish ... proposed regulations implementing the provisions of Title IX ... which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.'" Id. (quoting Education Amendments of 1974, Pub.L. No. 93-380, § 844, 88 Stat. 484, 612 (1974)).

II. HEW's 1975 Regulations

On June 20, 1974, in accordance with Congress's directive, HEW published proposed regulations implementing Title IX, which contained provisions addressing Title IX's application to athletic programs. 39 Fed.Reg. 22,227, 22,236 (June 20, 1974). After considering over 9,700 comments, suggestions, and objections, HEW published final regulations implementing Title IX on June 4, 1975. The final regulations were approved by President Gerald Ford, as required by 20 U.S.C. § 1682, and they became effective on July 21, 1975, "after Congress declined to disapprove them." McCormick, 370 F.3d at 287 (citing 40 Fed.Reg. 24,128, 24,137) (June 4, 1975).

The regulations prohibit sex-based discrimination in any interscholastic, intercollegiate, club, or intramural athletic program offered by a recipient of federal funds. 45 C.F.R. § 86.41(a). While the regulations explicitly authorize recipients to "operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport," 45 C.F.R. § 86.41(b), the regulations require recipients to "provide equal athletic opportunity for members of both sexes," 45 C.F.R. § 86.41(c). The equal opportunity determination includes, among other factors, consideration of "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of both sexes." Id.

III. The 1979 Policy Interpretation

On December 11, 1978, HEW published a Proposed Policy Interpretation for public comment. 43 Fed.Reg. 58,070, 58,071 (Dec. 11, 1978). At that time, HEW had received nearly 100 complaints against more than 50 colleges. Id. HEW intended for the Policy Interpretation to "provide a framework within which those complaints [could] be resolved, and to provide institutions of higher education with additional guidance on the requirements of the law relating to intercollegiate athletic programs." Id.

Following the publication of the Proposed Policy Interpretation, HEW received over 700 comments and visited

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eight universities "to see how the proposed policy and other suggested alternatives would apply in actual practice at individual campuses." 44 Fed.Reg. 71,413 (Dec. 11, 1979). HEW subsequently published a Final Policy Interpretation on December 11, 1979. Id. The general purposes of the Policy Interpretation included "clarify[ing] the meaning of `equal opportunity' in intercollegiate athletics ... [and] provid[ing] guidance to assist institutions in determining whether any disparities which may exist between men's and women's programs are justifiable and nondiscriminatory." Id. at 71,414. Of particular importance in this case, the Policy Interpretation contains the following guidance with respect to the regulatory requirement that educational institutions "effectively accommodate the interests and abilities of members of both sexes":

In effectively accommodating the interests and abilities of male and female athletes, 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.

a. Compliance will 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 portion of the 1979 Policy Interpretation, which is at issue in the instant case, has come to be known as the "Three-Part Test."

IV. The Department of Education Organization Act

In 1979, Congress divided HEW into the Department of Health and Human Services and the Department of Education (DOE). See Department of Education Organization Act, Pub.L. No. 96-88, 93 Stat. 669 (1979) (codified at 20 U.S.C. §§ 3401-3510). "HEW's functions under Title IX were transferred ... to the Department of Education," N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 517 n. 4, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (citing 20 U.S.C. § 3441(a)(3)), and the regulations implementing Title IX were recodified without substantive change at 34 C.F.R. Part 106. See McCormick, 370 F.3d at 287 ("All education functions were transferred to [the DOE], and thus we treat [the DOE] as the administrative agency charged with administering Title IX.").

V. The Civil Rights Restoration Act of 1987

In 1984, Title IX was construed by the United States Supreme Court in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), as being "program-specific," meaning that only the particular program that received federal financial assistance could be regulated under Title IX, as opposed to the entire institution. Grove City College, 465 U.S. at 573-575, 104 S.Ct. 1211. In response to

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the Supreme Court's decision, Congress passed the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28 (1988) (codified as amended at 20 U.S.C. § 1687), which reestablished institution-wide coverage under Title IX. The Act expressly provides that an educational institution as a whole must comply with Title IX's requirements if any part of the institution receives federal funds. 20 U.S.C. § 1687. Thus, the Act...

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