Tuesday, April 03, 2007

Waiting for JMU's Response to EIA's Ultimatum

Will JMU postpone the cuts, or will Equity in Athletics add them as a defendant? EIA gave them until Monday (yesterday) to decide, but there's been no word yet.

EIA seems to acknowledged that the remedy they are seeking will not redress their alleged injury, in a comment reported by InsideHigherEd.com:

“What we believe and what people I believe smarter than me believe is that institutions have taken this vehicle called Title IX and have taken liberties and interpretations of it to craft reasons to terminate programs,” Licata said in a Friday interview, acknowledging that even if the group wins the suit, JMU would still be at liberty to offer — and not offer — sports at will. “JMU has said, ‘Hey, we don’t want to do this; we have to do it.’ So if we take that reason out of it, if we’re successful with this, then we’ll find out what their true intentions are.”

In light of comments like this one, I'm rethinking my earlier assessment of EIA's standing to sue the Department of Ed. This seems like a classic lack of redressability, a la Allen v. Wright or Warth v. Seldin. In both of those cases, the Court held that even though the plaintiffs alleged a cognizable injury, they lacked standing because that injury stemmed from a third party, and thus was not necessarily redressable by the relief the court could order from the government defendants. Extending that principle here, it would seem that the loss of opportunity to compete in sports is a cognizable injury, but by EIA's own admission, it stems from a JMU, not the government. Thus, since throwing out the three-prong test (the relief EIA requests) is not necessarily going to redress that injury, EIA should not have standing.

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