Eliminating Sports for Title IX Compliance

Article excerpt

Equity in Athletics v. Department of Education

675 F. Supp. 2d 660

2009 U.S. Dist. LEXIS 121275

December 30, 2009

On September 29, 2006, James Madison University (JMU) decided to eliminate seven men's sports and three women's sports in an attempt to bring the university's varsity athletic program into compliance with Title IX. The university stated that the decision was based on the first part of Title IX's three-part test, which holds that the gender makeup of the university's athletic program must be "substantially proportionate" to that of the university's undergraduate enrollment. The university considered and analyzed alternatives but deemed any additional sports beyond the university's current total of 28 teams unacceptable. By cutting the ten teams, the gender makeup of JMU's athletic program would better match the current 61 percent female and 39 percent male student enrollment, compared to the student-athlete composition of 50.7 percent female and 49.3 percent male at the time before the proposed cuts.

Individuals opposed to the cuts formed Equity in Athletics, Inc. (EIA), and immediately filed action against the Department of Education, the Secretary of Education, the Assistant Secretary for Civil Rights, and the United States on March 19, 2007, seeking declaratory and injunctive relief that would void the allegedly unlawful guidelines and require new interpretations to be issued. At that time, EIA also requested that JMU defer the proposed eliminations until the challenge of the federal guidelines was complete. When JMU declined, EIA amended its complaint to include JMU and several affiliates as defendants on June 1, 2007, and filed a motion for preliminary injunction on June 15, 2007. The motion was ultimately denied, with the decision affirmed by the United States Court of Appeals.

Following a denied appeal to the United States Supreme Court, EIA filed a second amended complaint in U.S. District Court to protect athletic opportunities at federally funded Virginia colleges and universities from gender-based discrimination through implementation of Title IX. Equity in Athletics contended that the three-part test was discriminatory under four separate counts.

Discussion by the Court

In Count I, EIA challenged the validity of the three-part test, alleging that the test violates Title IX itself, the equal protection elements both of the Fourteenth Amendment and Fifth Amendment, along with the First Amendment, and the Spending Clause.

The plaintiffs contended that by allowing for the elimination of intercollegiate athletic opportunities in order to create opportunities proportionate to their respective enrollments, the three-part test authorizes universities to intentionally discriminate against males on the basis of gender. The court maintained that the policy does not require the elimination of programs because institutions can also satisfy the three-part test by fulfilling either of the two other prongs of the test. Elimination of athletic opportunities for the over-represented sex is not the only method by which Title IX compliance can be achieved.

The plaintiffs asserted that the use of the three-part test to eliminate several sports teams violated the associational protections of the First Amendment. However, the court noted that there is no generalized right of "social association" within a sport team. The associational protections of the First Amendment refer to intimate and expressive associations, while the interaction that occurs in a team setting is not considered a protected right.

Equity in Athletics alleged that the Spending Clause of the United States Constitution does not "authorize the federal defendants to impose coercive conditions" and that the federal defendants are not authorized to impose requirements on programs that are not directly receiving federal funds. The court held that the Spending Clause as associated with Title IX is of the same nature as a contract: in order to receive federal funds, the recipients agree to comply with federal regulations. …