Sixth Circuit Calls Off EMU's Reinstatement of Softball

The Sixth Circuit Court of Appeals has reportedly granted a stay that pauses a district court's order that Eastern Michigan University reinstate its women's softball team. As we blogged about last fall, the district court granted a preliminary injunction that would prevent the university from terminating softball along with the women's tennis team because the cuts would leave EMU in violation of all three prongs of  Title IX's test for compliance in the number of athletic activities available to each sex. Then in February EMU went back to the district court with a plan to add lacrosse instead, which the court rejected, ordering the university to hire a softball coach by April 1 and start planning for competition next season. Though the university reinstated tennis, it petitioned the appellate court to stay the district court's order.  

The Sixth Circuit Court of Appeals granted the requested stay, reasoning that Title IX requires equity in the availability of athletic opportunities overall, but does not require a university to support particular teams. Either proportionality or the absence of unmet interest among women (as the underrepresented sex) could satisfy the law's equity requirement, so the EMU could theoretically demonstrate Title IX compliance by adding or expanding women's opportunities in sports other than softball.

While I agree that Title IX doesn't require EMU to carry any particular sport, I have two concerns about using that rationale to undermine the court's injunction against cutting softball. First, will substituting softball with lacrosse bring the university into proportionality compliance? Because the fact that softball players are challenging the university's decision to terminate their team is evidence of unmet interest, so prong three is off the table.

Second, even if lacrosse-for-softball does bring the university into proportionality compliance, the timing of this is all wrong. Without softball, the university is out of compliance *right now* because of unmet interest. That's why the district court enjoined the cuts. If the university wanted to replace softball with lacrosse, it should have added lacrosse first to attain proportionality, then cut softball. If district courts can't effectively prevent unlawful cuts from happening before they happen, then Title IX loses whatever teeth it has to keep universities accountable for equity in athletics. EMU seems to be getting away with noncompliance here, so what's to stop other universities from taking the same "cut now, comply later" approach?