Friday, April 20, 2007

EIA Threatens to Sue Ohio U

Equity in Athletics, the organization suing the Department of Education and James Madison University, has now set its sights on Ohio University. Like JMU, Ohio recently cut a number of athletic teams--both men's and women's. Last month, EIA tried to use the threat of litigation to get JMU to postpone its cuts, and now it is taking the same approach with Ohio U.

While I don't support Ohio's decision to cut athletic teams, I think Ohio's cuts are legally defensible and I think EIA will have a hard time prevailing. First, unlike JMU, which has tried to use Title IX as a shield to deflect the heat it should be facing for cutting 10 teams, Ohio expressly admitted that the cuts were about saving money. Thus, it is even clearer in this case that even a successful challenge to Title IX would not reinstate the teams.

Second, EIA takes the position that the cuts violate Title IX and the Constitution because they don't take into account the relative interests of the student body. The relative interest test is legally and conceptually flawed. It (a) erroneously assumes that cuts disproportionately affect "interested" men, given that women also report high levels of interest in athletics (see, e.g.), and that women's teams are also being cut; and (b) ignores that currently existing disparities in opportunities will be reflected in any purported measure of interest. For these reasons, every federal appellate court that has considered the relative interest test has rejected it.

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