Equity in Athletics, Inc. v. Department of Educ., Civil Action No. 5:07CV00028.

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Writing for the CourtGlen E. Conrad
Citation504 F.Supp.2d 88
PartiesEQUITY IN ATHLETICS, INC., Plaintiff, v. DEPARTMENT OF EDUCATION, et al., Defendants.
Docket NumberCivil Action No. 5:07CV00028.
Decision Date21 August 2007

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, United States Department of Justice, Washington, DC, John Fredrick Knight, Ronald C. Forehand, William Eugene Thro, Office of the Attorney General, Richmond, VA, for Defendants.


GLEN E. CONRAD, District Judge.

Equity in Athletics, Inc. ("Equity") is 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 James Madison University ("JMU"). In this action for declaratory and injunctive relief, Equity challenges interpretive guidelines implementing Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 ("Title IX"), on the grounds that they violate the Constitution, Title IX, and the Administrative Procedure Act ("APA"). Equity alleges that these interpretive guidelines, namely the 1979 Policy Interpretation ("Three-Part Test") and its 1996, 2003, and 2005 Policy Clarifications, authorize or mandate the very discrimination that Title IX prohibits, by permitting institutions to engage in the gender-conscious capping or cutting of male athletic programs. Equity seeks declaratory and injunctive relief to vacate the allegedly unlawful guidelines and to require the United States Department of Education ("DOE") to issue new rules consistent with Title IX and the Constitution.

Subsequent to the filing of this action, Equity amended its complaint to include JMU and certain JMU officials as defendants and to directly challenge JMU's decision to eliminate ten athletic programs. Equity alleges 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 alleges 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.

The case is presently before the court on Equity's motion for preliminary injunction. The court held a hearing on the motion on July 19, 2007. For the following reasons, the motion will be denied.

Factual and Procedural Background

During the 2006-2007 academic year, JMU fielded men's and women's archery, men's baseball, men's and women's basketball, men's and women's cross country, women's fencing, women's field hockey, men's football, men's and women's golf, men's and women's gymnastics, women's lacrosse, men's and women's soccer, women's softball, men's and women's swimming and diving, men's and women's tennis, men's and women's track and field, women's volleyball, and men's wrestling. On September 29, 2006, JMU's Board of Visitors voted to downsize the university's athletic department to attain proportionality between the gender makeup of its athletic programs and that of its undergraduate enrollment. As reported in the approved minutes, the Board of Visitors took the following action:

On motion of Mr. Rivers, seconded by Mr. Foster[,] approved the elimination of the following men's sports: archery, cross country, gymnastics, indoor track, outdoor track, swimming and wrestling; and the following women's sports: archery, fencing, and gymnastics to be in compliance with the proportionality test of Title IX.

(Equity Hearing Ex. M.)

That same day, JMU issued a press release, which read as follows:

James Madison University's Board of Visitors voted today to approve a plan to bring the JMU Athletics program into compliance with Title IX.

The plan will take effect July 1, 2007, when the following varsity teams will be eliminated:

                  Cross Country
                  Indoor Track
                  Outdoor Track

With 28 varsity teams, the JMU Athletics program ties for the rank of seventh in terms of the number of teams among all 327 Division I schools nationally.

"The JMU Athletics program is unusually large for a public university of our size," said Joseph Damico, rector of the JMU Board of Visitors. "With so many teams, we faced an insurmountable challenge coming into compliance with Title IX. Fundamentally, that is why the Board voted today for this plan."

The proportionality requirements of Title IX mandate that collegiate athletics programs mirror each school's undergraduate population in terms of gender. As of the fall semester 2006, JMU's proportions place it fundamentally out of compliance with federal law:

                Overall Enrollment
                  Female 61%
                  Male 39%
                  Athletics Participation
                  Female 50.7%
                  Male 49.3%

Jeff Bourne, JMU athletics director, said, "We explored every avenue in search of an alternative to this action. Lamar. Daniel, a well-known consultant on Title IX compliance, has worked closely with us and he believes that this plan is our most viable alternative for reaching compliance with Title IX."

Once this plan is fully implemented, total participation in athletics will move to 61 percent female and 39 percent male, in alignment with current student enrollment. The university will then have 18 intercollegiate sports:

                  Cross Country
                  Field Hockey
                  Track, Indoor
                  Track, Outdoor

This decision affects 144 student-athletes currently participating in these sports, as well as three full-time and eight part-time coaches. "sow that the Board has voted to enact this plan, our main concern is with our affected student-athletes and coaches," said Bourne. "We are taking great care to preserve the financial guarantees already made to our student-athletes. If you are a student-athlete on an affected team and you are receiving a scholarship, you will continue to receive that scholarship until you graduate."

Currently, eight students on the rosters of the 10 affected teams receive a total of $13,500 in scholarships. Access to sports-medicine and academic-advising programs also will be available to them. Any affected student-athletes who decide to transfer to another program will be provided with full assistance regarding the transfer process. Affected coaches will receive severance packages appropriate to the university's policies and procedures.

All of the financial resources recovered from the implementation of this plan will be redirected to provide the, full complement of NCAA scholarships for women's golf, tennis and swimming. Partial scholarship funding will return to men's golf and tennis, with a plan to enhance to full funding by 2011.

(Amend. Compl. Ex. 3.)

On February 8, 2007, JMU issued a "Title IX Statement." That statement explained as follows:

The decision to eliminate ten sports at the university was difficult for the board of visitors and the administration. Alternatives were proposed, considered, and analyzed to deal with the need to come into compliance with Title IX. Unfortunately, 144 students and 11 coaches are adversely affected by this decision. The primary reason for the decision was to bring JMU into compliance with the law. Any solution that would require the addition of sports beyond the current 28 teams was deemed unacceptable. Although we regret the elimination of these 10 teams, as of July, 2007, the university will continue to manage and support a comprehensive intercollegiate athletic program of 18 sports.

Institutions may demonstrate compliance with Title IX by satisfying one of three "prongs" delineated by the Office of Civil Rights. The first test requires the university to demonstrate that its ratio of male to female students is mirrored in its ratio of male to female athletes. The second test requires the university to "demonstrate a history and continued practice of program expansion for the underrepresented sex." The third test requires the university to "fully and effectively accommodate the interests and abilities of the underrepresented sex."

It was the judgment of the administration and the board of visitors that the institution could not/would not satisfactorily meet the second or third test. The university could not demonstrate a history or continued pattern of program expansion to accommodate the needs of the under-represented gender, having added only one women's sport since 1990. And, while a survey is one tool to determine interest, we are already aware of student interest in varsity status, which the Office of Civil Rights has indicated is a sufficient indicator of unmet interest. Given its commitment to not add sports and its desire to be in compliance with Title IX, the university was left with the need to comply with the proportionality prong.

Three of the sports that will be eliminated as varsity sports were women's teams. In addition to achieving compliance with Title IX, sustainability of the existing teams was an issue that had to be addressed by the university. None of the eliminated women's teams are...

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