On Monday, Equity in Athletics sued the Department of Education in federal court to challenge Title IX and the three-part test applied to athletics. Equity in Athletics is motivated to challenge Title IX by JMU's recent decision to cut 10 (men's and women's) teams. Here are some early reflections on the lawsuit:
The argument: EIA argues that the problem with Title IX is that the three-part test has been applied with the force of law instead of mere policy. The complaint chronicles the procedural history of the three-part test, including that, in 1979, regulators characterized the three-part as nonbinding, interpretive guidance document rather than mandatory regulation precisely to avoid certain procedural requirements that apply to Title IX regulations (like a presidential signature). EIA then suggests that if the 1979 three part test was invalid, a "relative interest" standard would apply by operation of the Title IX regulations that had earlier been promulgated in 1975. "Relative interest" means that if men are more interested in sports than women, they should have a greater share of opportunity (or, a lesser share of any cuts). The problem with such a standard, I believe, is that interest tends to follow opportunity. As proof, consider how women's interest in sports has increased exponentially since Title IX was passed -- because the statute required schools to add opportunity. A "relative interest" standard would only insulate the inequities of the status quo. Fortunately, the federal courts have tended to reject universities' attempts to construe prong three as a relative interest test. However, none have considered the question in precisely this way--i.e., that relative interest standard applies by virtue of the 1975 regulations rather than the three-part test.
The defendant: I earlier reported -- in error, I regret -- that EIA was suing JMU. I'm obviously wrong about that, but wouldn't a suit against JMU make more sense? For one thing, the Department of Education had nothing to do with JMU's decision to cut 10 teams. They were not investigating the school or considering any enforcement action against it. JMU voluntarily chose to cut 10 teams. And it voluntarily chose to make such cuts as would put it in compliance with the proportionality prong, instead of one of the other alternative prongs. This is surely represents "choice," given that JMU had the option of administering a survey to establish compliance with prong three without cutting or adding any sports. Thus, winning a lawsuit against the DOE would not restore the 10 teams cut at JMU. All JMU would have to say is that it cut 10 sports because it couldn't afford to keep so many teams. Nor does it violate the law to cut more men's teams than women's, given that women had relatively fewer opportunities to start with. In other words, there is no reason to believe that even if the three-part test was invalidated, JMU could and would still do exactly the same thing.
EIA seems to accept this, and acknowledges in its complaint that JMU might in fact be an indispensable defendant. Leaving them out of the complaint -- for now -- seems to be a strategy to get JMU to agree to defer the cuts until the litigation has concluded: "If EIA cannot expeditiously convince JMU to defer its cuts pending the completion of this litigation against the federal defendants, EIA will amend this Complaint to include JMU and its Board of Visitors, ensuring this Court’s ability to provide complete relief."
The plaintiff: According to the complaint, Equity in Athletics is a broad coalition of athletes, future athletes, fans, alumni, coaches, and others with connections to intercollegiate athletics at federal funded schools in Virginia. By including athletes and future athletes, EIA seems likely to avoid the standing problems that the National Association of Wrestling Coaches had. One interest that is not mentioned in the complaint is the financial interest of EIA's principle donor, Brute Wrestling, "the world’s largest supplier of wrestling gear." Unless additional facts emerge that show Brute Wrestling is more than a donor but controlling the litigation, it is unlikely that the federal court would find its interest relevant to the case.