Yesterday, a federal appeals court sided with James Madison University in its litigation with Equity in Athletics, Inc., the group challenging JMU's decision to cut 7 men's and 3 women's athletic teams in 2006. A federal district court in Virginia had already rejected EIA's efforts to obtain a preliminary injunction against the cuts, which EIA argues violated Title IX and discriminated against men, and yesterday's decision 4th Circuit Court of Appeals affirmed the lower court's ruling.
Specifically, the 4th Circuit evaluated the district's weighing of the balance of harms, part of the test for whether a preliminary injunction should issue. The court concluded that the district court judge was reasonable in deciding that the harm to athletes in not being able to continue to in their chosen sports was important, but somewhat mitigated by the fact that they could retain their scholarships or choose to transfer. On the other hand, the harm to JMU in granting the injunction, which would essentially force the university to reinstate 10 teams that it determined it could not afford, was great. Moreover, EIA could not make a clear showing of a likely success on the merits, given that all federal appellate courts who have considered the question have upheld universities' decisions to let cuts fall disproportionately more on the sex that had proportionately more athletic opportunities to begin with, as was the case with JMU.
EIA has not said publically whether it plans to continue to pursue its litigation against JMU (its motion for a permanent injunction against the cuts is still pending, but looks rather futile now) or its litigation against the Department of Education, in which it challenges the legality and constitutionality of the regulatory interpretation of Title IX, on which JMU purportedly relied. However, since the Title IX standard does not require any school to make cuts -- it only protects women's opportunities from cuts when women are underrepresented in athletics in the first place -- EIA will likely have difficulty establishing standing to challenge to sustain this claim. But given that EIA seems to exist for the primary purpose of challenging Title IX's regulatory interpretation, I don't think this weakness will stop them from trying.
Decision (.pdf) is: Equity in Athletics v. Dep't of Educ., No. 07-1914 (4th Cir. Aug. 20, 2008) (unpublished).