Fourth Circuit Affirms JMU Cuts

Equity in Athletics has been battling in court James Madison University's decision to cut 10 teams since the cuts were announced in 2006. On behalf of the affected athletes and other interested parties, the organizations sued the University and the Department of Education, challenging both the cuts and the Department of Education's policy interpretation that provides the three part test for measuring equity in athletic opportunities. After failing to attain a preliminary injunction against the cuts, EIA continued to pursue permanent relief. Last year, a federal court in Virginia rejected EIA's claims, and yesterday, a three-judge panel of the Fourth Circuit Court of Appeals affirmed.

Though the appellate court agreed that EIA had standing to bring its case, the rest of the decision rejected EIA's arguments in their entirety. In particular, the court rejected EIA's argument that the three-part test is an unauthorized use a disparate impact standard of discrimination. For one thing, the court cited specific language in Title IX that allows regulators to consider statistics when defining and measuring equity. ("Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex." 20 U.S.C. § 1681(b).) For another, the court said EIA "misconstrues" the three-part test as a mandatory disparate impact standard. Consistent with every other court that has considered this question, the court recognized that the three-part test does not mandate proportionality. Rather, it allows evidence of proportionality create a presumption of compliance. Institutions with disproportional athletic opportunities can still show compliance under either of the alternative prongs.

The court then went on to affirm the district court's rejection of EIA's other claims, affirming the constitutionality and procedural validity of the three-part test as well as the constitutionality of JMU's decision to cut more men's teams than women's teams -- a decision that affected more male athletes, but produced a result that "ensure[d] that the student body as a whole was “substantially equally” represented in the availability of opportunities for athletic participation." Relatedly, the court "unhesitatingly [made] clear " its rejection of the idea that athletic opportunities should be distributed in proportion to percentages of male and female students who are interested in athletics, citing the First Circuit's oft-quoted language that "[i]nterest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience."

According to a press release, EIA plans to appeal, either to the entire Fourth Circuit en banc (which can, in rare cases, reverse a three-judge panel) or to the Supreme Court. So we are not yet done blogging about this case!

Decision is: Equity In Athletics, Inc. v. Department Of Educ., 2011 WL 790055 (4th Cir.(Va.) Mar 08, 2011).