CSCAA Posts Update to Equity in Athletics, Inc., Lawsuit

ROANOKE, Virginia, March 23. EQUITY in Athletics, Inc. ("EIA") announced Tuesday it has filed a lawsuit in United States District Court for the Western District of Virginia seeking to set aside the so-called "three-part test" utilized by the Department of Education ("DOE") to determine compliance with Title IX of the Education Amendments of 1972, according to a press release posted on CSCAA.org. The case is Civil Action No. 5:07-0028 before Judge Glen E. Conrad.

EIA's lawsuit alleges that DOE changed the Title IX compliance test from the 1975 regulations' requirement of equal opportunity, based on the genders' relative interests, to the three-part test's standard of equal participation, based on enrollment. Citing Office of General Counsel memoranda from DOE's predecessor, the former Department of Health, Education & Welfare ("HEW"), EIA's complaint alleges that HEW did not intend the original three-part test in 1979 as binding or even as a test for Title IX compliance. No court has considered the merits of HEW's position in 1979 versus DOE's position today.

Since 1996, however, DOE has treated the three-part test as having the force of law, despite the failure of HEW and DOE to follow mandatory rule-making procedures to amend the Title IX regulations. EIA also alleges the three-part test violates the United States Constitution's equal protection guarantees on its face and as applied by DOE and educational institutions, which agree to follow federal standards as a condition of accepting federal funds.

EIA's President, John Licata said: "The three-part test is not faithful to Title IX's intent or the regulations that HEW adopted by HEW in 1975 to prohibit gender-based discrimination in athletics. The unlawful use of the test by the government over the last decade has resulted in the loss of countless opportunities for both men and women to participate in athletics. The elimination of opportunities for men does not expand opportunities for women. EIA is committed to Title IX's proper, nondiscriminatory intent."

EIA's litigation was spurred by a decision announced by James Madison University to eliminate ten varsity athletic teams effective July 1, 2007 in order to make JMU's rate of gender representation in athletic programs the same as its overall student gender breakdown. The "proportionality test" employed by JMU is one of the prongs of DOE's three-part test.

Phil Whitten, the Executive Director of the College Swimming Coaches Association of America and a member of the EIA's Board of Directors, commented: "There is a terrible irony now in the abuse and misuse of Title IX by some cynical athletic directors. Title IX, which was enacted to redress a situation in which women were denied educational opportunities –including athletic opportunities – solely on the basis of sex states quite simply and straightforwardly:

‘No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.'

"Yet," said Whitten, "that is precisely what has happened – and is happening with increasing frequency, as hapless athletic administrators cut Olympic sports including swimming, while they cite Title IX as a justification

"Tell me, how does cutting a young man from the men's swimming or wrestling or track and field team contribute to equality for women?" Whitten asked rhetorically.

"It doesn't. All it dos is shatter a young athlete's dream, a dream he most likely has worked years to turn into reality."

"These days, Title IX is even being used to cut women's sports – all in the name of equality.

"Title IX could not be more explicit: ‘No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid'

"What pat of ‘no person' do these administrators fail to understand?"

EIA incorporated in February 2007 to support broad-based athletic programs, particularly to preserve all ten JMU teams scheduled to be cut: men's and women's archery and gymnastics, women's fencing, and men's swimming, track, cross country and wrestling. Notwithstanding its JMU focus, EIA's members include student-athletes, coaches, parents, and alumni from many schools outside the JMU controversy, including the University of Virginia, the College of William & Mary, and Old Dominion University in Virginia.

"We are particularly grateful that more than 100 members of the JMU family have contributed to EIA," said EIA President Licata, himself a JMU alumnus and former wrestling coach. The world's largest supplier of wrestling gear, Brute Wrestling, donated the proceeds of the Brute Adidas Nationals wrestling tournament, which enabled EIA to get started.

"Although the Brute donation enabled us to get started, we could not have filed this lawsuit without the support of the entire JMU community," said Licata, "The most gratifying support comes from JMU programs not affected by the planned cuts, such as women's swimming and track, who have joined to help save their male teammates."

Speaking about JMU's decision, EIA President Licata said "while JMU students are the biggest victims here, JMU itself is the victim of DOE's failure to acknowledge what Title IX actually requires." Licata added that "JMU has stated publicly its decision to eliminate the teams was motivated solely by its obligation to comply with Title IX. Given the legal uncertainty over what Title IX requires, JMU should withhold its planned cuts, pending the final resolution of this litigation. If not, EIA will add JMU to the lawsuit as a defendant and seek an immediate order from the Court to halt the cuts while this case proceeds."

"The opportunity to participate in intercollegiate athletics serves an important educational role not only for the students themselves, but also in developing the next generation of elementary, middle school, and high school teachers and coaches," Licata said. "Over time, eliminating Olympic intercollegiate sports teams has forced many school districts to replace the traditional teacher-coach with part time coaches who are not educators and thus often fail to keep scholastic sports within the educational mission that it should serve."

EIA's counsel are Lawrence J. Joseph (Washington, D.C.), Douglas G. Schneebeck (Albuquerque, New Mexico) and Thomas H. Miller (Roanoke, Virginia). Schneebeck is a graduate of James Madison University, and was the captain of JMU's 1982 track and field squad. Men's track is among the sports set for elimination by JMU.

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