James Madison University’s (“JMU”) decision to eliminate seven men’s and three women’s sports teams to bring its athletic program into compliance with Title IX, the federal law barring sex discrimination at colleges receiving federal financial aid, has been upheld unanimously by the federal appeals court in Richmond. Equity in Athletics Inc. v. Department of Educ., No. 10-1259 (4th Cir. Mar. 8, 2011). The Court affirmed the dismissal of the lawsuit filed by Equity in Athletics Inc. (“EIA”), a coalition of student athletes, coaches, parent, and fans, challenging JMU’s decision as violating the U.S. Constitution and Title IX.
Title IX broadly prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681.
Although Title IX does not expressly address intercollegiate athletics, the Department of Education (“DOE”) has issued regulations regarding Title IX’s application to such programs; those regulations provide, 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). To provide guidance to colleges regarding their Title IX obligations, the DOE has issued policy interpretations stating that compliance would be assessed in one of three ways:
(1) by examining “whether athletic opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments;”
(2) by showing that they have met the athletic interests and abilities of underrepresented students; or
(3) by expanding opportunities for underrepresented students.
44 Fed. Reg. 71,413 (Dec. 11, 1979). This interpretation became known as the “Three-Part Test.”
Relying on the first prong (proportionality) of the Three-Part Test, JMU eliminated 10 athletic teams in 1996 to bring its sports program into compliance with Title IX. At the time of the cuts, women represented 61% of the undergraduate student body; however, they constituted only 50.7% of the varsity intercollegiate athletes. The cuts resulted in a female athletic participation rate of 61%, which aligned more closely with female student enrollment.
Although JMU considered alternate ways to comply with Title IX, they were not tenable. JMU could not demonstrate a history or continuing pattern of program expansion to accommodate the needs of the underrepresented sex. JMU also could not expand its athletic program beyond its 28 teams to accommodate unmet student interest, noting that such an option was “unacceptable.”
EIA sued JMU and various federal agencies and officials, challenging, among other things, Title IX’s interpretive guidelines and JMU’s team eliminations as violating Title IX and the U.S. Constitution. JMU moved to dismiss EIA’s claims, and the district court granted JMU’s motion. EIA appealed.
EIA argued that JMU’s use of the proportionality criteria violated Title IX because it imposed an “affirmative action requirement” mandating preferential treatment for women and a disparate impact analysis on Title IX’s express disparate treatment statutory language. The Court rejected EIA’s argument because, although Title IX does not require proportionality or preferential treatment of an underrepresented sex, it allows for the consideration of statistical evidence “in any hearing or proceeding” to show sex-based disparities. 20 U.S.C. § 1681(b).
In addition to the lack of statutory support for EIA’s position, the Court further observed that EIA’s argument mischaracterized the Three-Part Test as a mandatory disparate impact standard. Indeed, EIA’s arguments have been rejected by other Circuit Courts. For example, in Cohen v. Brown Univ., 101 F.3d 155, 170-71 (1st Cir. 1996), the First Circuit found that “Title IX, like other anti-discrimination schemes, permits an inference that a significant gender-based statistical disparity may indicate the existence of discrimination.” In Kelley v. Bd. of Tr., Univ. of Ill., 35 F.3d 265, 271 (7th Cir. 1994), the Seventh Circuit found that the “policy interpretation does not, as plaintiffs suggest, mandate statistical balancing.” Consistent with these decisions, the Court concluded that the Three-Part Test does not mandate proportionality and rejected EIA’s Title IX claim.
The Court then found that EIA’s various constitutional and procedural claims also lacked any basis in applicable law. Because EIA’s arguments lacked support in the statute’s language and case law, the Court affirmed the dismissal of EIA’s claims.
According to a press release, EIA intends to request reconsideration by the full panel of the Fourth Circuit or appeal to the U.S. Supreme Court.
Jackson Lewis attorneys are available to answer inquiries regarding this and other developments in intercollegiate and professional athletics.