Equity in Athletics Sues on Behalf of James Madison

ROANOKE, Virginia, March 15. EQUITY in Athletics, Inc. ("EIA") announced yesterday that 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.

The story first appeared yesterday on cscaa.org, the web site of the College Swimming Coaches Association of America (CSCAA).

EIA's litigation was spurred by a decision announced by James Madison University (Harrisonburg, Virginia) to eliminate 10 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.

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."

Equity in Athletics is governed by a seven-person Board of Directors that includes Phillip Whitten, Executive Director of the College Swimming Coaches Association of America (CSCAA). Whitten commented: "The Department of Education has blatantly disregarded established, mandatory procedures in its zeal to enforce a radical, and unintended, interpretation of Title IX. In the past decade, this interpretation has resulted in the loss of thousands of athletic opportunities for men. Ironically, it is now costing women athletic opportunities as well, as cynical athletic department administrators have manipulated the intent of Title IX for their own purposes."

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 this morning: "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 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.