Now, the federal district court in Virginia has examined EIA's case "on the merits" (rather than under the "likelihood of success on the merits" standard that applies to preliminary injunctions) and has determined that the case should be dismissed. The court rejected EIA's arguments that the regulatory interpretation of Title IX that contains the proportionality standard (the "Policy Interpretation") is unconstitutional and procedurally invalid. Like all courts that have considered this argument in the past, the court emphasized that the proportionality is not a mandate, but rather, one of three compliance options, and affirmed that both Title IX and the Equal Protection Clause allow schools to take sex into account in order to correct existing discrimination. The court also refused to read Supreme Court's recent decision that curtailed certain race-conscious remedies in schools to suggest that it is unlawful to take sex into account when making a decision to eliminate teams. It reasoned athletic opportunities are different from other educational opportunities because they are traditionally and lawfully sex-segregated, which makes it impossible to measure equality without taking gender into consideration.
Some other arguments that the court rejected:
- that "reciprocal teams" (men's and women's swimming, for example) have a First Amendment right to be associated together, which is violated by Title IX policy because it allows schools to terminate only one (teams are neither intimate nor expressive organizations, to which such rights apply).
- that the only measure of equality should be whether opportunities are proportional to expressed interest of each sex (such a standard would not remediate discrimination against the underrepresented sex).
- that the Department of Education did not receive authority to implement Title IX when it was created to partially replace the Department of Health, Education and Welfare (it did).
- that the Policy Interpretation is invalid because it was not promulgated after a period of public notice and comment, and was not signed by the President (those procedural requirements only apply to "regulations," not policies that simply fill in the details of more broadly-worded regulatory standard).
- that JMU violated the Equal Protection Clause when it considered sex in making a decision to cut athletic teams (same reasons why the Policy Interpretation is constitutional).
- that JMU violated athletes' constitutional right to due process (no recognized property interest in athletic participation).
- that JMU's athletic opportunities after the cuts violate the Policy Interpretation, because men are now the underrepresented sex by 2% (the standard is "substantial" proportionality, not exact proportionality, and other courts have upheld a similar small disparity).
- that JMU shortchanged female athletes by ~12% in the distribution of scholarship dollars (EIA did not purport to have current female athletes among its members, so it did not have standing to raise this claim).
Decision is: Equity in Athletics, Inc., v. Dep't of Educ., 2009 WL 5149869 (W.D. Va. Dec. 30, 2009)