CSCAA Announces that Equity in Athletics Amends Lawsuit Against James Madison

PHOENIX, Arizona, June 6. EQUITY in Athletics, Inc. (EIA) announced today that it has filed an amended complaint to include James Madison University (JMU), JMU President Linwood Rose, Athletic Director Jeffrey Bourne, and JMU's entire Board of Visitors as defendants in EIA's pending suit against the federal Department of Education's "Three-Part Test." The announcement came through a press release from the College Swimming Coaches Association of America as its web site www.cscaa.org.

The Department of Education uses its Three-Part Test to determine whether an athletic department complies with Title IX of the Education Amendments of 1972. For schools such as JMU, where women outnumber men in the student body, that test requires that either (1) athletic participation rates mirror enrollment rates by gender, (2) the school recently added a women's sport, or (3) the school has fully met women's athletic interests, even if it has not fully met men's interest.

EIA's amended complaint alleges that the Three-Part Test posed JMU with a dilemma: either elevate women's equestrian and/or water polo as new varsity sports to comply with prongs two and three, or cut the athletic department to meet first prong's enrollment quota.

"Adding water polo would have been the easiest and most economical solution," said Phillip Whitten, Executive Director of the CSCAA and a member of EIA's Board of Directors. "It would have necessitated building no new facilities and many members of the women's swim team would also have played polo. They might even have been able to use the same coaching staff."

Unfortunately, JMU announced on September 29, 2006, that it would cut 10 teams (men's and women's archery and gymnastics, women's fencing, and men's swimming, indoor and outdoor track, cross country and wrestling to comply with the first prong.

EIA argues that the 1975 Title IX regulations create an equal-opportunity standard, based on interest, with schools' having the obligation to assess the interest of both genders. In a series of notices and memoranda in 1979, 1996, 2003, and 2005, however, the federal government purports to have created a rival standard of equal participation, based on enrollment. This new federal standard does not require schools to assess students' relative interests.

EIA argues that those post-1975 actions were both procedurally and substantively illegal. Procedurally, the federal government never commenced the rulemaking that federal law would require to amend the 1975 regulations. Although courts in other jurisdictions have relied on the enrollment-based standard, no court has ever considered the merits of EIA's argument that those post-1975 actions purport to change the Title IX standard without the required rulemaking. The Fourth Circuit, which includes Virginia, West Virginia, Maryland, and the Carolinas, has not ruled on the question for schools within its jurisdiction.

By a letter dated March 23, 2007, EIA offered JMU the opportunity to avoid litigation while EIA's suit against the federal government determined the lawful Title IX standard for Virginia and the Fourth Circuit. On April 4, 2007, JMU rejected EIA's offer, making a suit against JMU the only option for saving the ten teams and voiding JMU's illegal cuts.

In April and May, EIA gathered evidence and worked with students to prepare affidavits to show that the ten JMU teams are ready, willing, and able to compete next year if the court nullifies the cuts scheduled to take effect July 1, 2007. After serving the complaint and summonses on the new defendants this week, EIA plans to ask Judge Glen E. Conrad to issue a preliminary injunction against the cuts.

If Judge Conrad upholds the original 1975 regulations' equal-opportunity test over the Three-Part Test, JMU's planned cuts are illegal under Title IX. But regardless of whether agency memoranda somehow amended the Title IX regulations, EIA alleges that JMU's planned cuts also violate the Equal Protection Clause of the Fourteenth Amendment. The Department of Education has acknowledged that its Title IX guidance does not apply to the Equal Protection Clause.

As a state school, JMU arguably shares Virginia's Eleventh Amendment's immunity from suit in federal court without consent. By accepting federal funds, however, JMU consented to suit under Title IX. In addition to suing JMU itself, EIA sued JMU's administration individually to avoid the argument that the Eleventh Amendment makes JMU immune from suit for violating the Equal Protection Clause. Under the "officer suit" exception to sovereign immunity, EIA may sue individual JMU officers in federal court to enjoin ongoing violations of federal law.

In addition to alleging violation of Title IX and the U.S. Constitution, the amended complaint alleges that JMU's cuts violate the Virginia Human Rights Act and the Due Process Clause of Virginia's constitution. The complaint also alleges that JMU's Board of Visitors planned the illegal cuts in secret meetings that violated the open-meeting provisions of the Virginia Freedom of Information Act.

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.

More information is available at http://www.equityinathletics.org.

Special thanks to the CSCAA for contributing this report.

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