Judge Won't Enjoin JMU's Decision to Cut Teams

A federal district judge in Virginia has denied a motion for preliminary injunction filed by Equity in Athletics, Inc., which sought to postpone James Madison University's decision to cut 10 sports teams.

The legal standard for granting an injunction required EIA to show that the harm of denying the injunction outweighs the harm in granting it. It also required EIA to convince the judge that it would likely succeed on the merits of its argument that the cuts were unlawful. The judge decided that EIA did not satisfy either test. While recognizing the harm to the athletes that would result to the athletes by JMU's decision, the judge also considered that EIA waited five months after the university announced its decision to file suit. During that time, the university and the athletes behaved in reliance on the decision to cut teams, thus making it more disruptive in the judge's view to reinstate the teams than to let JMU's decision stand.

The judge also found that EIA's legal argument against JMU was unlikely to succeed on the merits. He noted that every court that has considered similar challenges has determined that it is lawful for schools for seek proportionality compliance by reducing opportunities for the overrepresented gender. He also rejected EIA's attempt to use the Supreme Court's recent rejection of a race-based affirmative action program as the basis on which to reject any classification of students on the basis of sex, pointing out that race-based classifications are subject to higher scrutiny than sex-based classifications. Finally, he rejected EIA's arguments that the three-part test is itself unconstitutional, unworthy of deference, and promulgated by improper procedures.

The judge's order is technically confined to EIA's claims against JMU and does not resolve EIA's claims against the Department of Education that challenge the validity of the three-prong test under the U.S. Constitution, Title IX, and the Administrative Procedure Act. However, the judge addressed many of these same arguments in denying the injunction against JMU. Whether EIA will appeal the judge's order to the Fourth Circuit or continue to press the claims against the Department of Education remains to be seen, but EIA will have to factor into its decision that a judge -- one appointed by President Bush, no less -- has just told them their arguments are unlikely to succeed.

For previous posts on the JMU decision and the lawsuit, use the JMU label below.