Equity in Athletics, Inc. v. Department of Education

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUITY IN ATHLETICS, 

INCORPORATED,

Plaintiff-Appellant,

v.

DEPARTMENT OF EDUCATION; ARNE

DUNCAN, Secretary of Education,

in his official and individual

capacity; SANDRA BATTLE, Acting

Assistant Secretary for Civil

Rights, in her official and

individual capacity; UNITED STATES

OF AMERICA; JAMES E. HARTMAN,

Vice Rector, James Madison

University, in his official and

individual capacity; JEFFREY T.  No. 10-1259

BOURNE, Athletics Director, James

Madison University, in his official

and individual capacity; MARK T.

BOWLES, Visitor, James Madison

University, in his official and

individual capacity; JOSEPH F.

DAMICO, Visitor, James Madison

University, in his official and

individual capacity; RONALD C.

DEVINE, Visitor, James Madison

University, in his official and

individual capacity; LOIS J.

FORBES, Visitor, James Madison

University, in her official and

individual capacity;



2 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

CHARLES H. FOSTER, JR., Visitor, 

James Madison University, in his

official and individual capacity;

JAMES MADISON UNIVERSITY;

STEPHEN R. LEEOLOU, Visitor,

James Madison University, in his

official and individual capacity;

WHARTON B. RIVERS, JR., Visitor,

James Madison University, in his

official and individual capacity;

LARRY M. ROGERS, Visitor, James

Madison University, in his official

and individual capacity; LINWOOD

H. ROSE, President, James

Madison University, in his official 

and individual capacity; JUDITH

STRICKLER, Visitor, James Madison

University, in her official and

individual capacity; MEREDITH

STROHM GUNTER, Rector, James

Madison University, in her official

and individual capacity; THE

VISITORS OF JAMES MADISON

UNIVERSITY; JOHN DOES, 1-200, in

their official and/or individual

capacity; JOHN DOE, Entities

1-200; VANESSA M. EVANS, Visitor,

James Madison University, in her

official and individual capacity;



EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 3

JOSEPH K. FUNKHOUSER, II, Visitor, 

James Madison University, in his

official and individual capacity;

ELIZABETH V. LODAL, Visitor,



James Madison University, in her

official and individual capacity;

FRED D. THOMPSON, JR., Visitor,

James Madison University, in his

official and individual capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Glen E. Conrad, District Judge.

(5:07-cv-00028-gec)

Argued: December 7, 2010

Decided: March 8, 2011

Before GREGORY, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Davis wrote the opin-

ion, in which Judge Gregory and Judge Wynn joined.

COUNSEL

ARGUED: Lawrence John Joseph, Washington, D.C., for

Appellant. Thomas Mark Bondy, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C.; William

Eugene Thro, CHRISTOPHER NEWPORT UNIVERSITY,

Newport News, Virginia, for Appellees. ON BRIEF: Douglas

4 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

G. Schneebeck, MODRALL SPERLING, Albuquerque, New

Mexico, for Appellant. Tony West, Assistant Attorney Gen-

eral, Timothy J. Heaphy, United States Attorney, Barbara C.

Biddle, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Federal Appellees. Kenneth T. Cucci-

nelli, II, Attorney General of Virginia, E. Duncan Getchell,

Jr., State Solicitor General, Stephen R. McCullough, Senior

Appellate Counsel, Charles E. James, Jr., Chief Deputy Attor-

ney General, John F. Knight, University Counsel, OFFICE

OF THE ATTORNEY GENERAL, Richmond, Virginia, for

James Madison University Appellees.

OPINION

DAVIS, Circuit Judge:

More than thirty years after Congress enacted a mandate

for equal opportunity between the sexes in college athletics,

this case reminds us that the realization of that congressional

goal continues to pose myriad challenges to our nation’s col-

leges and universities. Plaintiff-Appellant Equity in Athletics,

Inc. (EIA), a membership organization comprised of student-

athletes, coaches, parents, alumni, and fans, is a not-for-profit

Virginia nonstock corporation. In this lawsuit seeking declara-

tory and injunctive relief, EIA challenges the Department of

Education’s (DOE) interpretative guidelines implementing the

equal opportunity mandate of Title IX of the Education

Amendments of 1972, Pub. L. 92-318, 86 Stat. 373, 20 U.S.C.

§§ 1681-88 (Title IX). EIA alleges that the guidelines violate

Title IX, the U.S. Constitution, and the Administrative Proce-

dure Act (APA), 5 U.S.C. § § 551 et seq. EIA also seeks relief

against James Madison University (JMU), challenging JMU’s

2006 decision to eliminate ten of the university’s varsity ath-

letic teams (seven men’s teams and three women’s teams), on

the grounds that the elimination of those teams violates Title

IX, the U.S. Constitution, and Virginia law. The district court

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 5

granted defendants’ motion to dismiss and dismissed the case;

EIA has noted a timely appeal. For the reasons that follow, we

affirm the judgment of the district court.

I.

We begin with a brief review of the statutory and regula-

tory background relevant to this case.

In 1972, Congress enacted Title IX, which provides in part

that "[n]o person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education pro-

gram or activity receiving Federal financial assistance." 20

U.S.C. § 1681. Title IX did not specifically address its appli-

cation to athletics, and in 1974, Congress enacted the Javits

Amendment, which directed the Secretary of Health, Educa-

tion, and Welfare ("HEW") to "prepare and publish . . . pro-

posed regulations which shall include with respect to

intercollegiate athletic activities reasonable provisions consid-

ering the nature of particular sports." Education Amendments

of 1974, Pub. L. No. 93-380, § 844 (1974) (Javits Amend-

ment).

On June 20, 1974, HEW published its proposed regulations

implementing Title IX, containing provisions that addressed

the statute’s application to athletic programs. 39 Fed. Reg.

22,227, 22,236 (June 20, 1974). HEW followed notice and

comment rulemaking procedures, and President Ford

approved the final regulations, as required by Title IX, 20

U.S.C. § 1682.1 Effective July 21, 1975, the regulations pro-

1

The relevant portion of the provision reads: "Each Federal department

and agency which is empowered to extend Federal financial assistance to

any education program or activity . . . is authorized and directed to effectu-

ate the provisions of section 1681 of this title with respect to such program

or activity by issuing rules, regulations, or orders of general applicability

which shall be consistent with achievement of the objectives of the statute

authorizing the financial assistance in connection with which the action is

taken. No such rule, regulation, or order shall become effective unless and

until approved by the President." 20 U.S.C. § 1682.

6 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

vided in part that "[a] recipient which operates or sponsors

interscholastic, intercollegiate, club or intramural athletics

shall provide equal athletic opportunity for members of both

sexes." 45 C.F.R. § 86.41(c). One of the ten factors used to

determine equality of opportunity is "[w]hether the selection

of sports and levels of competition effectively accommodate

the interests and abilities of members of both sexes." Id.

In December 1978, HEW issued a Proposed Policy Inter-

pretation to provide further guidance for the 1975 regulations.

43 Fed. Reg. 58,070 (Dec. 11, 1978). After receiving numer-

ous comments in response to its proposed interpretation,

HEW issued a Final Policy Interpretation in December 1979.

44 Fed. Reg. 71,413 (Dec. 11, 1979). The Policy Interpreta-

tion aimed to supply guidance to educational institutions to

"effectively accommodat[e] the interests and abilities of male

and female athletes" and provided that compliance would be

assessed "in any one of the following ways":

(1) Whether intercollegiate level participation

opportunities for male and female students are pro-

vided in numbers substantially proportionate to their

respective enrollments; or

(2) Where the members of one sex have been and

are underrepresented among intercollegiate athletes,

whether the institution can show a history and con-

tinuing practice of program expansion which is

demonstrably responsive to the developing interest

and abilities of the members of that sex; or

(3) Where the members of one sex are underrepre-

sented among intercollegiate athletes and the institu-

tion cannot show a continuing practice of program

expansion such as that cited above, whether it can be

demonstrated that the interests and abilities of the

members of that sex have been fully and effectively

accommodated by the present program.

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 7

Id. at 71,418. This provision has come to be known as the

"Three-Part Test," and its first prong is at the heart of EIA’s

claims in this case against DOE and JMU.

In 1979, Congress split HEW into the Department of

Health and Human Services and the Department of Education.

See Department of Education Organization Act, 20 U.S.C.

§ § 3401-3510, Pub. L. 96-88 (1979). As part of that reorgani-

zation, HEW’s functions with respect to educational programs

were transferred to the Department of Education. 20 U.S.C.

§ 3441(a)(3) (transferring to DOE all functions of HEW’s

Office of Civil Rights, "which relate to functions transferred

by this section"); see also N. Haven Bd. of Educ. v. Bell, 456

U.S. 512, 517 n.4 (1982) ("HEW’s functions under Title IX

were transferred . . . to the Department of Education.");

McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck,

370 F.3d 275, 287 (2d Cir. 2004) (noting that "we treat [DOE]

as the administrative agency charged with administering Title

IX").

In 1996, after soliciting public comments on its proposal,

DOE issued a clarification to the 1979 Policy Interpretation.

The clarification provided that institutions need only comply

with one part of the Three-Part Test and enumerated factors

that would guide DOE’s analysis of compliance under each

part. Clarification of Intercollegiate Athletics Policy Guid-

ance: The Three-Part Test (Jan. 16, 1996), transmitted by Let-

ter from Norma V. Cantu, Assistant Secretary for Civil

Rights, Department of Education ("1996 Clarification"),

reprinted in J.A. 407-23 (guidelines provide "three individual

avenues to choose from" in order to comply).

In 2003, DOE issued a Further Clarification, which reiter-

ated that the 1979 Policy Interpretation did not mandate

reductions to men’s teams and noted that DOE disfavored the

elimination of teams as a means of compliance. Further Clar-

ification of Intercollegiate Athletics Policy Guidance Regard-

ing Title IX Compliance (July 11, 2003), transmitted by Letter

8 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

from Gerald Reynolds, Assistant Secretary for Civil Rights,

Department of Education ("2003 Further Clarification"),

reprinted in J.A. 424-26.

In 2005, DOE issued an Additional Clarification, empha-

sizing that institutions could demonstrate compliance under

any prong of the Three-Part Test. See Additional Clarification

of Intercollegiate Athletics Policy Three-Part Test–Part Three

(March 17, 2005), transmitted by Letter from James F. Man-

ning, Delegated Authority of Assistant Secretary for Civil

Rights, Department of Education ("2005 Additional Clarifica-

tion"), reprinted in J.A. 427-42. While attempting to delineate

institutions’ obligations under Title IX, these clarifications

have emphasized that DOE intended to provide schools with

flexibility in selecting methods of achieving compliance.

II.

The parties here agree that the cardinal facts giving rise to

this litigation are essentially undisputed. On September 29,

2006, JMU announced its plan to eliminate seven men’s and

three women’s athletic teams in order to bring its intercolle-

giate athletic program into compliance with Title IX.2 In a

press release issued following its decision, JMU noted that, as

of the 2006 fall semester, although women represented 61%

of the undergraduate student body, they constituted only

50.7% of the varsity intercollegiate athletes. The press release

went on to announce that the proposed cuts would yield a

female athletic participation rate of 61%, a figure that would

align more closely with female student enrollment.

In explaining its decision to eliminate the designated teams,

JMU stated that "[a]lternatives were proposed, considered,

and analyzed to deal with the need to come into compliance

with Title IX," but ultimately, "the university was left with the

2

JMU is a state-sponsored university in Virginia that has received and

continues to receive federal funds.

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 9

need to comply with the proportionality prong [of the Three-

Part Test]." J.A. 344. The university found that compliance

under either of the two other prongs of the Three-Part Test

was untenable. With respect to the second prong of the Test,

JMU determined that it could not demonstrate a history or

continuing pattern of program expansion to accommodate the

needs of the under-represented sex, having added only one

women’s sport since 1990. JMU also found it could not com-

ply with the third prong of accommodating unmet student

interest, as "[a]ny solution that would require the addition of

sports beyond the current 28 teams was deemed unaccept-

able." J.A. 344. As the university explained, "The primary

reason for the decision was to bring JMU into compliance

with the law." J.A. 344. The proposed team eliminations took

effect on July 1, 2007.

Meanwhile, opponents of JMU’s decision incorporated EIA

on February 5, 2007 in order to challenge JMU’s proposed

cuts. On March 19, 2007, EIA filed this action against DOE,

the Secretary of Education, the Assistant Secretary for Civil

Rights, and the United States ("federal defendants"), challeng-

ing Title IX’s interpretive guidelines. In particular, EIA

asserted that DOE’s 1979 Policy Interpretation, i.e., the

Three-Part Test, and its subsequent Policy Clarifications vio-

lated Title IX, the U.S. Constitution, and the APA. At about

the time it filed suit against the federal defendants, EIA

requested that JMU defer its proposed elimination of the ten

teams and, when JMU refused, EIA amended its complaint to

join JMU and numerous JMU officials as defendants. EIA’s

complaint sought declaratory and injunctive relief that would

invalidate the allegedly unlawful guidelines and forestall

JMU’s proposed team eliminations. In the alternative, EIA

sought damages under Title IX to compel JMU to equalize

scholarship payments to student-athletes affected by the

alleged scholarship gap created by JMU’s decision to elimi-

nate teams.

10 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

On June 15, 2007, EIA filed a motion for a preliminary

injunction to prevent JMU from going forward with its plan

to cut the athletic teams slated for elimination. The district

court denied the motion for preliminary injunction, Equity in

Athletics, Inc. v. United States Department of Education, 504

F. Supp. 2d 88 (W.D. Va. 2007), and we affirmed the district

court, 291 Fed. Appx. 517 (4th Cir. 2008) (unpublished), cert.

denied, 129 S. Ct. 1613 (2009). Following the appeal of the

denial of its motion for a preliminary injunction, EIA filed a

second amended complaint, and the parties filed dispositive

motions. On December 30, 2009, the district court granted the

defendants’ motions to dismiss and entered final judgment.

Equity in Athletics, Inc. v. Dep’t of Educ., 675 F. Supp. 2d

660 (W.D. Va. 2009) (the "District Court Opinion"). EIA

brought this timely appeal. We review a district court’s grant

of a motion to dismiss de novo.3 Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).

III.

We first address the issue of standing, which is indispens-

able to a federal court’s exercise of jurisdiction. The federal

defendants challenge EIA’s standing to bring this suit, argu-

ing that the underlying injury of which it complains could be

redressed only by the university. JMU, on the other hand,

contends that EIA’s membership does not include female ath-

letes on existing teams; it thus argues that EIA lacks standing

to challenge the university’s scholarship allocation. JMU does

not contest EIA’s standing with respect to its other claims.

3

The district court had before it EIA’s motion for summary judgment

under Fed. R. Civ. P. 56 and the defendants’ motions to dismiss for failure

to state a claim under Fed. R. Civ. P. 12(b)(6). The district court granted

the defendants’ motions and denied EIA’s motion, but it effectively

treated all the motions as motions for summary judgment without objec-

tion from any of the parties. We discern no disputes of material fact, and

no party raises any issues with respect to the content of the record before

us.

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 11

Where, as here, the plaintiff is an organization bringing suit

on behalf of its members, it must satisfy three requirements

to secure organizational standing: (1) that its members would

have standing to sue as individuals; (2) that the interests it

seeks to protect are germane to the organization’s purpose;

and (3) that the suit does not require the participation of indi-

vidual members. Hunt v. Washington State Apple Advertising

Comm’n, 432 U.S. 333, 343 (1977). Individual members of

the organization must be able to show that (1) they suffered

an actual or threatened injury that is concrete, particularized,

and not conjectural; (2) the injury is fairly traceable to the

challenged conduct; and (3) the injury is likely to be redressed

by a favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992); Miller v. Brown, 462 F.3d 312, 316

(4th Cir. 2006). This court assumes the merits of a dispute

will be resolved in favor of the party invoking our jurisdiction

in assessing standing and, at the pleading stage, "presumes

that general allegations embrace those specific facts that are

necessary to support the claim." Lujan v. National Wildlife

Federation, 497 U.S. 871, 889 (1990); see also Parker v. Dis-

trict of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007), aff’d

by District of Columbia v. Heller, 554 U.S. 570 (2008) ("The

Supreme Court has made clear that when considering whether

a plaintiff has Article III standing, a federal court must

assume arguendo the merits of his or her legal claim.").

Nonetheless, the Court has clarified that "pleadings must be

something more than an ingenious academic exercise in the

conceivable." U.S. v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973).

We find that EIA meets the requirements for organizational

standing as to its claims against DOE and JMU. It appears

uncontested that the interests EIA seeks to protect are ger-

mane to its purpose, given that EIA claims it acts to preserve

broad-based athletic participation at JMU and other universi-

ties by seeking judicial invalidation of DOE’s Three-Part

Test. Further, its suit does not require the participation of its

individual members, as EIA seeks declaratory and injunctive

12 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

relief against DOE’s interpretations and JMU’s actions predi-

cated thereunder.4 See Hunt, 432 U.S. at 343. Finally, EIA has

made a sufficient showing that individual members meet the

constitutional standing requirements of injury, causation, and

redressability, as set forth in Defenders of Wildlife, 504 U.S.

at 560-61.

With regard to injury, the record supports EIA’s allegations

that its members include current JMU students who were on

the teams eliminated in 20075 as well as female athletes on

continuing teams.6 Moreover, EIA claims that its membership

base is broader than students and includes coaches, alumni,

and fans who assert that their injuries are manifested in denial

not only of participation opportunities for athletes, but also of

economic and associational opportunities. Because EIA can

demonstrate that it has members that were directly affected by

JMU’s decision to eliminate teams to comply with prong one

of the DOE’s Three-Part Test, it has sufficiently stated an

injury-in-fact. See McCormick, 370 F.3d at 285 (concluding

the jurisdictional requirements were met because student ath-

4

To the extent that EIA seeks to equalize female athletic scholarship

allocations, EIA has provided affidavits by members assigning their

claims to EIA. The Supreme Court has permitted organizational standing

for assigned damages claims. Sprint Communications Co., L.P. v. APCC

Services, Inc., 554 U.S. 269, 288 (2008).

5

At oral argument, counsel for JMU conceded that several EIA mem-

bers who were athletes on teams eliminated in 2007 remain enrolled at

JMU for the 2010-11 academic year.

6

The district court addressed standing only with respect to EIA’s claim

regarding the allocation of female athletic scholarships. The court below

concluded that EIA lacked standing to pursue this claim against JMU

because it found "absolutely no indication . . . that EIA’s members include

female athletes on JMU’s existing teams. . . ." District Court Opinion, 675

F. Supp. 2d at 684. The district court appears to be mistaken in its review

of the record. The record includes affidavits from female athletes on exist-

ing teams that would have been affected by scholarship allocation. The

affidavit of counsel for EIA states that these individuals are EIA members,

though the students’ affidavits are silent on this point. J.A. 454.

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 13

lete plaintiffs had not yet graduated and could benefit from

the injunctive relief sought).

Similarly, we find that EIA has set forth allegations suffi-

cient to support causation and redressability for standing pur-

poses as to its claims against both DOE and JMU. EIA has

shown that the injuries suffered by its members were fairly

traceable to JMU’s decision to eliminate teams, a decision

JMU insists it made as part of an effort to comply with prong

one of the DOE’s Three-Part Test and its Title IX obligations.

EIA contends that DOE’s Three-Part Test caused injury to

EIA members by inducing educational institutions, including

JMU, to achieve proportionality by cutting and capping men’s

athletic teams. As JMU explained, having found compliance

under the other two prongs untenable, "the university was left

with the need to comply with the proportionality prong [of the

Three-Part Test]." J.A. 344. EIA seeks redress for its mem-

bers’ injuries in the form of a declaration that the Three-Part

Test is both substantively and procedurally invalid and an

injunction to prevent JMU from maintaining the elimination

of athletic teams in reliance on DOE’s current interpretations

of Title IX. Invalidating the Three-Part Test, EIA alleges, will

redress its members’ injuries by "restoring the 1975 regula-

tory standard, under which schools must provide opportunity

(or ration scarcity) based on relative interest [rather than on

substantial proportionality]." J.A. 257. Though such an out-

come would not necessarily guarantee the restoration of the

teams that JMU chose to eliminate, no explicit guarantee of

redress to a plaintiff is required to demonstrate a plaintiff’s

standing.

For example, in National Parks Conservation Ass’n v.

Manson, the D.C. Circuit found that the plaintiff organization

had shown redressability where, "although a federal district

court ruling in favor of National Parks would not directly

determine whether the Roundup Plant will get its permit, the

effect of such a ruling would not be far removed." 414 F.3d

1, 6 (D.C. Cir. 2005). The court there found it sufficient that

14 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

the court’s decision would "significantly affect" plaintiff’s

injuries. Id. at 7; see also Massachusetts v. Envtl. Prot.

Agency, 549 U.S. 497, 526 (2007) (finding the redressability

requirement met where the court’s decision would reduce "to

some extent" plaintiffs’ risk of additional injury); Utah v.

Evans, 536 U.S. 452, 464 (2002) (noting that "a significant

increase in the likelihood that the plaintiff would obtain relief

that directly redresses the injury suffered" suffices to show

standing); Florida Audubon Soc. v. Bentsen, 94 F.3d 658,

663-64 (D.C. Cir. 1996) ("Redressability examines whether

the relief sought . . . will likely alleviate the particularized

injury alleged by the plaintiff.") (emphasis added).

Here, JMU announced that it was relying on the proportion-

ality prong of the Three-Part Test in making the cuts; accord-

ingly, a declaration invalidating the Three-Part Test would

likely significantly affect JMU’s decision. More importantly,

JMU would be bound by the decision of this court. This is not

a case of injury resulting "from the independent action of

some third party not before the court," Simon v. Eastern Ken-

tucky Welfare Rights Organization, 426 U.S. 26, 42 (1976).

Rather, the regulated party here is also a party to the case,

and, as such, will be bound by this court’s determination of

the validity of the agency’s interpretations as well as the

necessity for the school’s actions to comply with such interpreta-

tions.7 In light of JMU’s reliance on prong one of the DOE’s

7

In this regard, this case differs from similar cases decided by the D.C.

Circuit, in which a plaintiff organization sued the Department of Educa-

tion, challenging the Title IX interpretations as substantively and proce-

durally flawed. National Wrestling Coaches Ass’n v. Dep’t of Educ., 366

F.3d 930 (D.C. Cir. 2004) (hereinafter "NWCA"). The court there found

that the plaintiffs lacked standing to sue DOE because their injuries were

not redressable in a suit against DOE alone, but noted that they might be

redressable in a suit against the universities. Id. at 936-37; see also Col-

lege Sports Council v. Dep’t of Educ., 465 F.3d 20, 22 (D.C. Cir. 2006)

(dismissing on standing grounds), cert. denied, 552 U.S. 821 (2007). Here,

EIA has sued both DOE and the university. As such, the redressability

concerns expressed by the D.C. Circuit in NWCA do not appear. At oral

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 15

Three-Part Test and the fact that JMU is a party to this action,

we find that EIA has made a sufficient showing to demon-

strate standing against both DOE and JMU.

IV.

We next consider the merits of EIA’s claims. EIA contends

that the Three-Part Test is rendered substantively infirm by its

alleged purposes and effects: "unlawfully establish[ing] a

disparate-impact standard" and "unlawfully authoriz[ing]

intentional discrimination." J.A. 286.8 However, because nei-

ther of these contentions has merit, the district court properly

granted defendants’ motion to dismiss EIA’s substantive chal-

lenge to the regulations.

Title IX

Under the Three-Part Test, the first benchmark used to

assess whether an educational institution is "effectively

accommodat[ing] the interests and abilities of members of

argument, counsel for DOE conceded that the redressability issue that had

existed in earlier cases against DOE alone was not present here because

EIA had sued both DOE and JMU.

Moreover, there is no indication in this case that JMU would have taken

the very same action to eliminate specific teams (or that it will maintain

the specific eliminations) if the federal regulatory regime EIA attacks here

were invalidated. This circumstance further distinguishes this case from

NWCA. See Emergency Coalition to Defend Educational Travel v. U.S.

Dept. of the Treasury, 545 F.3d 4, 230 (D.C.Cir. 2008) (distinguishing

NWCA by noting that, "[T]here was reason to believe that universities

might well independently implement the Title IX policy of equalizing

male and female athletic resources by eliminating or restricting wrestling

teams of their own accord, even if the court held that the government regu-

lations at issue were illegal.").

8

Though EIA raises a number of other substantive arguments, e.g., a

spending clause claim, the district court considered them fully and found

them to be without merit, as do we. See District Court Opinion, 675 F.

Supp. 2d at 672-77.

16 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

both sexes," as required by 45 C.F.R. § 106.41(a), is "whether

intercollegiate level participation opportunities for male and

female students are provided in numbers substantially propor-

tionate to their respective enrollments." 44 Fed. Reg. 71, 413,

71,418. EIA argues that the use of this criterion violates Title

IX by "requiring . . . schools where men are more interested

than women in athletics . . . to discriminate against male

student-athletes" and by effectively imposing an "affirmative

action requirement" that mandates preferential treatment for

women. J.A. 287.

EIA’s argument appears to be based upon the notion that,

because Title IX prohibits intentional discrimination as dispa-

rate treatment, any implementing regulation that is directed

toward disparate impact violates the statute. EIA contends

that the Three-Part Test constitutes a disparate impact stan-

dard that should not be permitted to "trump" Title IX’s prohi-

bition against intentional discrimination, citing the Supreme

Court’s recent decision in Ricci v. DeStefano, 129 S. Ct. 2658,

2675 (2009). However, EIA’s argument both (1) fails to take

into account the statutory language that explicitly permits

consideration of sex-based disparities in Title IX enforcement

actions and (2) mischaracterizes the Three-Part Test as a man-

datory disparate impact standard.

EIA fails to acknowledge the clear statutory language of

Title IX that allows for some consideration of proportionality

between participation and enrollment. Title IX does not

require proportionality between the percentage of persons of

a particular sex who participate in an activity or program and

the percentage of persons of that sex in the community as a

whole. The provision at issue reads:

Nothing contained in subsection (a) of this section

shall be interpreted to require any educational insti-

tution to grant preferential or disparate treatment to

the members of one sex on account of an imbalance

which may exist with respect to the total number or

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 17

percentage of persons of that sex participating in or

receiving the benefits of any federally supported pro-

gram or activity, in comparison with the total num-

ber or percentage of persons of that sex in any

community, State, section, or other area: Provided,

That this subsection shall not be construed to pre-

vent 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) (emphasis added). However, as the plain

language of the provision indicates, the statute does not forbid

seeking such proportionality, and, moreover, as the high-

lighted language makes clear, the statute expressly allows for

consideration of sex-based statistical imbalances in the course

of enforcement proceedings.

In Cohen v. Brown University, the First Circuit rejected a

similar challenge to Title IX’s regulations. 101 F.3d 155 (1st

Cir. 1996) (hereinafter "Cohen II"). In a suit by female stu-

dent athletes against the university for failure to comply with

Title IX, the university attempted to challenge the substantive

validity of the Three-Part Test. The First Circuit found that

"Title IX, like other anti-discrimination schemes, permits an

inference that a significant gender-based statistical disparity

may indicate the existence of discrimination." Id. at 170-71

(finding that Title IX does not ban "gender-conscious reme-

dies"). The Ninth Circuit has also held that Title IX "does not

bar remedial actions designed to achieve substantial propor-

tionality between athletic rosters and student bodies." Neal v.

Bd. of Tr. of the Cal. State Univ., 198 F.3d 763, 771 (9th Cir.

1999). Like the defendants in those cases, EIA here fails to

show how the Three-Part Test exceeds the permissive bounds

of the statute.

In addition to its failure to take into account the express

language of Title IX that permits consideration of sex-based

18 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

disparities, EIA also misconstrues the nature of the regula-

tions themselves. EIA contends that DOE’s Three-Part Test

constitutes a mandatory disparate impact standard that would

violate Title IX. However, this contention is without merit, as

numerous courts have held.

In Kelley v. Bd. of Tr., Univ. of Ill., the Seventh Circuit

found that the "policy interpretation does not, as plaintiffs

suggest, mandate statistical balancing. Rather the policy inter-

pretation merely creates a presumption that a school is in

compliance with Title IX and the applicable regulation when

it achieves such a statistical balance." 35 F.3d 265, 271 (7th

Cir. 1994). The court in Kelley went on to note that,

"[D]espite plaintiffs’ assertions to the contrary, neither the

regulation nor the policy interpretation run afoul of the dic-

tates of Title IX." Id. at 272. The First Circuit in Cohen II

echoed this rejection:

[The University’s] talismanic incantation of "affir-

mative action" has no legal application to this case

and is not helpful to [its] cause. . . . No aspect of the

Title IX regime at issue in this case-inclusive of the

statute, the relevant regulation, and the pertinent

agency documents-mandates gender-based prefer-

ences or quotas, or specific timetables for imple-

menting numerical goals.

101 F.3d 155, 170 (1st Cir. 1996) (citations omitted).

Moreover, courts have held that the Three-Part Test pro-

vides universities with flexibility in achieving statutory com-

pliance. The Ninth Circuit in Neal found:

Every court, in construing the Policy Interpretation

and the text of Title IX, has held that a university

may bring itself into Title IX compliance by increas-

ing athletic opportunities for the underrepresented

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 19

gender (women in this case) or by decreasing ath-

letic opportunities for the overrepresented gender.

198 F.3d at 770. As the First Circuit emphasized in its first

opinion in Cohen v. Brown University, "Title IX does not

require that a school pour ever-increasing sums into its ath-

letic establishment." 991 F.2d 888, 898 n. 15 (1st Cir. 1993)

(hereinafter "Cohen I"). The Tenth Circuit further clarified

that "[f]inancially strapped institutions may still comply with

Title IX by cutting athletic programs such that men’s and

women’s athletic participation rates become substantially pro-

portionate to their representation in the undergraduate popula-

tion." Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 830

(10th Cir. 1993).

DOE itself has consistently emphasized that its guidance is

meant to provide this kind of flexibility to educational institu-

tions, explaining that the Three-Part Test "furnishes an institu-

tion with three individual avenues to choose from when

determining how it will provide individuals of each sex with

nondiscriminatory opportunities to participate in intercolle-

giate athletics." 1996 Clarification, reprinted at J.A. 413. Fur-

ther, "[i]f a school does not satisfy the ‘substantial

proportionality’ prong, it would still satisfy the three-prong

test if it" can meet one of the remaining prongs. 2003 Clarifi-

cation, reprinted at J.A. 425. EIA’s claim that sex-based bal-

ancing for the purposes of achieving participatory

proportionality violates Title IX has been consistently dis-

missed, as has its contention that the Three-Part Test creates

a mandatory disparate impact requirement. Because EIA fails

to provide support to the contrary, the district court’s dis-

missal of this claim was proper.

Equal Protection

EIA also hypothesizes that the Three-Part Test violates the

equal protection clause of the Fourteenth Amendment by "re-

quiring compliance with an enrollment-based quota" that

20 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

"serves no government purpose." Appellant’s Br. at 40. Rely-

ing on the decisions of the First, Seventh, and Ninth Circuits,

the district court rejected EIA’s argument that the Three-Part

Test is unconstitutional, stating that "every appellate court

that has considered the constitutionality of the proportionality

prong of the Three-Part Test has held that it does not offend

constitutional principles of equal protection." District Court

Opinion, 675 F. Supp. 2d at 671. The district court’s analysis

is sound.

In Kelley, the Seventh Circuit explained,

While the effect of Title IX and the relevant regula-

tion and policy interpretation is that institutions will

sometimes consider gender when decreasing their

athletic offerings, this limited consideration of sex

does not violate the Constitution. . . . There is no

doubt but that removing the legacy of sexual

discrimination-including discrimination in the provi-

sion of extra-curricular offerings such as athletics-

from our nation’s educational institutions is an

important governmental objective.

35 F.3d at 271-273; see also Cohen I, 991 F.2d at 900-901

(rejecting Brown University’s equal protection challenge to

the Three-Part Test). The Ninth Circuit in Neal adopted the

reasoning of the First and Seventh Circuits and held that "the

constitutional analysis contained therein persuasively disposes

of any serious constitutional concerns" that might be raised

with respect to the Three-Part Test. 198 F.3d at 772; see also

Boulahanis v. Bd. of Regents, 198 F.3d 633, 639 (7th Cir.

1999) (reiterating Kelley’s holding). EIA’s equal protection

argument has been widely rejected, and this court finds the

reasoning of our sister circuits persuasive.

To counter this overwhelming rejection of its contentions

by other courts, EIA cites to Parents Involved in Cmty. Sch.

v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), for the propo-

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 21

sition that any attempt to achieve "balance" or proportionality

in the education context is inappropriate. However, as the dis-

trict court explained, Parents Involved and other race-based

cases furnish no support for EIA’s position. Parents Involved

centered on race-based school assignments and the strict scru-

tiny to which racial classifications are subject. 551 U.S. at

720. The Supreme Court’s analysis in Parents Involved has

little bearing on a case involving sex-based classifications,

which are subject to the lesser standard of intermediate scrutiny.9

Here, EIA concedes the higher degree of scrutiny applied by

the Court in Parents Involved when it notes that the court

rejected balancing as a "compelling interest." Appellant Br.

62. It is far from clear that achieving sex equality in college

athletics is not an important government interest, and EIA

fails to show otherwise.10 Moreover, the nature of collegiate

athletics differs from the school assignments at issue in Par-

ents Involved in part because teams are segregated by sex and

participation opportunities are decided in advance. In Neal,

the court noted that these differences meant that "[t]he para-

digm that has motivated the Supreme Court’s more recent

[racial] reverse-discrimination jurisprudence simply does not

fit the case at bar." 198 F.3d at 773 n.8. EIA fails to provide

any support to the contrary. Accordingly, EIA’s equal protec-

tion claim, like its claim based on Title IX itself, was properly

dismissed.

9

See Adkins v. Rumsfeld, 464 F.3d 456, 468 (4th Cir. 2006) ("A statute

that explicitly classifies people based on sex is subject to intermediate

scrutiny, which means ‘it must be established at least that the challenged

classification serves important governmental objectives and that the dis-

criminatory means employed are substantially related to the achievement

of those objectives.’") (quoting Nguyen v. INS, 533 U.S. 53, 60 (2001)).

10

Seemingly in an effort to move its equal protection claim into the

realm of strict scrutiny, EIA attempts to argue that its members’ "associa-

tional rights" under the First Amendment have been harmed by the Three-

Part Test. However, EIA can cite to no authority for applying First

Amendment case law in this context. Thus, the district court properly

rejected this argument. District Court Opinion, 675 F. Supp. 2d at 672-73.

22 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

V.

EIA also argues that the district court erred in rejecting its

claims that publication of the Three-Part Test was procedur-

ally flawed and its efficacy therefore fatally undermined.

Among the procedural flaws that EIA complains of are the

fact that the Three-Part Test did not undergo APA notice and

comment review and lacked presidential approval as man-

dated by Title IX.11 We conclude that the district court prop-

erly dismissed EIA’s procedural claims.

APA Notice and Comment

EIA claims that DOE’s Three-Part Test is procedurally

invalid because neither the 1979 Policy Interpretation nor the

DOE’s subsequent clarifications underwent the notice and

comment procedures prescribed by the APA, 5 U.S.C. § 553.

The district court found that neither the 1979 Policy Interpre-

tation nor the later clarifications were subject to the APA’s

notice and comment requirements because they were "inter-

pretative guidelines" and "did not create new rights, impose

new obligations, or change the existing law." District Court

Opinion, 675 F. Supp. 2d at 677 (citing Chen Zhou Chai v.

Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995)).

11

Though it is somewhat difficult to glean its argument, EIA also

appears to challenge the procedural validity of the Three-Part Test due to

HEW’s failure to comply with the "laying-before" requirement of the Gen-

eral Education Provisions Act (GEPA), 20 U.S.C. § 1232(d)(1). That pro-

vision required final HEW regulations to be presented to Congress, whose

disapproval could prevent the regulation from taking effect. 20 U.S.C.

§ 1232(d)(1). In any event, EIA concedes, albeit inartfully, that HEW

carefully considered the requirements imposed by GEPA and found that

they did not apply to its 1979 Policy Interpretation. Reply Br. 21. See also

Letter from Patricia Roberts Harris, Secretary of Health, Education, and

Welfare, to the Honorable William D. Ford, Chairman, Subcommittee on

Postsecondary Education, Committee on Education, House of Representa-

tives (Feb. 11, 1980), reprinted at J.A. 388-89 (explaining HEW’s reason-

ing for not presenting the interpretation to Congress). We find EIA’s

argument with respect to GEPA to be without merit.

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 23

At the time the 1979 Policy Interpretation went into effect,

the agency noted that it "represent[ed] [HEW’s] interpretation

of the intercollegiate athletic provisions of Title IX . . . and

its implementing regulation." 44 Fed. Reg. 71,413 (emphasis

added). Both the 1979 Policy Interpretation and the subse-

quent policy clarifications were intended to provide "addi-

tional guidance on the requirements for compliance with Title

IX." 44 Fed. Reg. 71,413 (emphasis added).

EIA contends that the 1979 Policy Interpretation and the

subsequent clarifications amended the regulations, but it

utterly fails to provide support for this contention. As the dis-

trict court appropriately noted, "[a]n interpretive guideline

does not ‘become an amendment merely because it supplies

crisper and more detailed lines than the authority being inter-

preted.’" District Court Opinion, 675 F. Supp. 2d at 677

(quoting American Mining Congress v. Mine Safety & Health

Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993)). In NWCA, the

D.C. Circuit regarded DOE’s Three-Part Test as "interpretive

guidelines that the Department was not obligated to issue in

the first place." 366 F.3d at 940. As a result, the court there

found that the policies were not subject to notice and com-

ment requirements. EIA’s claims regarding procedural flaws

due to lack of notice and comment similarly fail here.

Presidential Approval

EIA also contends that the Three-Part Test is procedurally

invalid because it was not approved by the President. As

described in Part I supra, 20 U.S.C. § 1682 provides in part

that any "rule, regulation, or order" issued by a federal agency

to effectuate Title IX must be approved by the President in

order to become effective. Consistent with this requirement,

President Ford signed the Title IX regulations promulgated by

HEW in 1975. EIA contends that the 1979 Policy Interpreta-

tion, including the Three-Part Test, is invalid because it

lacked similar presidential approval. The district court cor-

rectly rejected this contention as meritless.

24 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

As with the APA’s notice and comment requirements,

courts have held that the requirement of presidential approval

does not apply to the issuance of interpretive guidelines. See,

e.g., Cohen v. Brown Univ., 879 F. Supp. 185, 199 (D. R.I.

1995), rev’d in part on other grounds, 101 F.3d 155 (1st Cir.

1996) (holding that the 1979 Policy Interpretation "need not

be approved by the President in order to become effective,"

as it "is not a rule, regulation, or order"). EIA’s efforts, more-

over, to corral the full range of agency action into the catego-

ries that require presidential approval fail to grasp long-

standing conceptions of administrative law and are without

merit. See, e.g., United States v. Mead Corp., 533 U.S. 218,

228 (2001) (noting that "agencies charged with applying a

statute necessarily make all sorts of interpretive choices"). We

find the reasoning of these courts persuasive, and find that

EIA’s argument with regard to procedural invalidity of the

Three-Part Test due to lack of presidential approval also fails.

The district court properly rejected EIA’s procedural claims,

and this court finds no reason to disturb that judgment.

VI.

Finally, EIA asserts both state and federal claims against

JMU. With respect to state law, EIA alleges that JMU vio-

lated the Virginia Freedom of Information Act by "working in

secret" to eliminate athletic teams and violated other state

laws by making the decision to eliminate teams "for the

express purpose of attaining enrollment proportionality." J.A.

295. EIA claims JMU violated federal law in the following

ways: (1) that JMU violated the Equal Protection Clause by

eliminating ten athletic teams to comply with the Three-Part

Test; (2) that JMU violated its members’ substantive and pro-

cedural due process protections by eliminating the ten teams

in order to comply with the Three-Part Test; and, finally, (3)

that JMU violated Title IX by eliminating ten athletic teams,

which resulted in both a participation and scholarship gap, in

violation of the Three-Part Test. The district court properly

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 25

dismissed the claims against the JMU defendants, and we

affirm for the following reasons.

State Law Claims

The district court dismissed EIA’s state law claims as

barred by the Eleventh Amendment. The Eleventh Amend-

ment provides that "the judicial power of the United States

shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State or by Citizens or Subjects of any

Foreign State." U.S. Const. amend. XI.12 Courts have held this

immunity to extend to "state agents and state instrumentali-

ties." Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429

(1997). Though there are several well-established exceptions

to this jurisdictional bar,13 as the district court noted, "None

of the established exceptions . . . permit private citizens to

bring suit against state officials for injunctive or declaratory

relief designed to remedy violations of state law." District

Court Opinion, 675 F. Supp. 2d at 679. See Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (hold-

ing an exception to Eleventh Amendment immunity "inappli-

cable in a suit against state officials on the basis of state

law"); see also Antrican v. Odom, 290 F.3d 178, 187 (4th Cir.

12

The Eleventh Amendment, though without express language to this

effect, has been interpreted to bar suits brought by a citizen against his

own state. See Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 291 (4th Cir.

2001)(citing Litman v. George Mason Univ., 186 F.3d 544, 549 (4th Cir.

1999); Hans v. Louisiana, 134 U.S. 1, (1890)).

13

See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996) (holding

that Congress may abrogate a state’s immunity pursuant to its enforcement

power under § 5 of the Fourteenth Amendment); Ex parte Young, 209 U.S.

123 (1908) (holding that the Eleventh Amendment does not prevent pri-

vate individuals from bringing suit against state officials for prospective

injunctive or declaratory relief for ongoing violations of federal law);

United States v. Texas, 143 U.S. 621, 644-45 (1892) (holding that the

United States may bring suit against a state to enforce compliance with

federal law).

26 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

2002) (finding that the Ex parte Young exception "does not

apply to actions against State officials seeking to compel their

compliance with State law").

To overcome this bar, EIA contends that "§ 1988(a) ‘feder-

alizes’ state-law doctrines into EIA’s federal cause of action

under 28 U.S.C. § 1343 and 42 U.S.C. § 1983." Appellant Br.

25. EIA argues that § 1988(a) incorporates Virginia’s Human

Rights Act into EIA’s § 1983 claim against state officers.

Without specifying which elements are missing from the fed-

eral law that state law could provide, EIA maintains that

"[s]tate law supplies elements to EIA’s § 1983 claims."

Appellant Br. 25. EIA fails to offer support for this proposition,14

but we need not decide the issue here, as it is not squarely

before us. Therefore, we affirm the district court’s dismissal

of EIA’s state law claims.

Equal Protection

EIA next alleges that JMU’s decision to eliminate certain

men’s athletic teams violated the equal protection rights of

male athletes with respect to participation. The district court

rejected this argument, noting that JMU’s "eliminations were

made in an attempt to comply with the requirements of Title

IX," a reason that two other circuit courts had found sufficient

14

The cases cited by EIA are of no avail. In Bragg v. West Virginia Coal

Ass’n, this court rejected plaintiffs’ argument attempting to enforce federal

law in a suit against state officers. 248 F.3d 275, 295 (4th Cir. 2001) ("By

giving States exclusive regulatory control through enforcement of their

own approved laws, Congress intended that the federal law establishing

minimum national standards would "drop out" as operative law and that

the State laws would become the sole operative law."). In Antrican v.

Odom, this court found that the Eleventh Amendment did not bar plain-

tiffs’ claim in a suit against state officers enforcing a state Medicaid pro-

gram, but did so on the grounds that federal standards continued to be

"directly applicable." 290 F.3d 178, 187-88 (4th Cir. 2002). Neither of

these cases is relevant to EIA’s arguments attempting to enforce state law

against state officers or to demonstrate how state law might provide ele-

ments to its federal claims.

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 27

to reject similar claims. District Court Opinion, 675 F. Supp.

2d at 680 (citing Kelley, 35 F.3d at 272; Miami Univ. Wres-

tling Club v. Miami Univ., 302 F.3d 608, 614 (6th Cir. 2002)).

Arguing that the district court’s reliance on the Kelley and

Miami Univ. Wrestling Club decisions is misplaced, EIA

appears to contend that, even if the Title IX regulations are

valid on their face, JMU’s implementation of them violated

equal protection. However, EIA fails to provide any support

for its as-applied challenge other than to claim that JMU has

established an impermissible quota, a claim that has been

roundly rejected by other courts, see Part IV.A-B supra.

In order to survive a motion to dismiss an equal protection

claim, a plaintiff must plead sufficient facts to demonstrate

plausibly that he was treated differently from others who were

similarly situated and that the unequal treatment was the

result of discriminatory animus. Morrison v. Garraghty, 239

F.3d 648, 654 (4th Cir. 2001); see also Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 560-61 (2007). Here, EIA has failed

to make sufficient allegations with respect to either element.

Other courts have relied on the intent element to dismiss

similar claims in the past. In Miami Univ. Wrestling Club, the

Eighth Circuit noted, "Only if Title IX, its regulations or the

Policy Interpretation are unconstitutional . . . could we hold

that Miami’s compliance with the law and the regulations is

unconstitutional." 302 F.3d at 614. Here, JMU made its deci-

sion to cut the teams in order to comply with the Three-Part

Test. As such, EIA fails to plead facts plausibly identifying

any discriminatory intent on the part of the university decision

makers.

Moreover, to avoid dismissal of its claim, EIA must plead

sufficient facts to show, plausibly, that JMU treated male ath-

letes differently from female athletes. While JMU relied on

sex in making its decision about which teams to cut, its efforts

were an attempt to bring athletic participation in line with the

28 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

student body population. As such, although more male ath-

letes might have been affected by the cuts, the result was to

ensure that the student body as a whole was "substantially

equally" represented in the availability of opportunities for

athletic participation.

EIA argues that the student body is not the appropriate pool

against which to compare athletic participation; rather, it con-

tends such comparisons should be made with respect to inter-

est. However, in affirming the district court’s denial of EIA’s

motion for preliminary injunction, we found that "[c]ourts

have consistently rejected EIA’s underlying claim that equal

opportunity under § 86.41 should be tied to expressed interest

rather than actual participation." Equity in Athletics, 291 Fed.

Appx. at 523. We unhesitatingly make clear our endorsement

of this principle. As the First Circuit explained in Cohen II,

"[i]nterest and ability rarely develop in a vacuum; they evolve

as a function of opportunity and experience." 101 F.3d at 179.

See also Neal, 198 F.3d at 767 (finding that an approach that

ties interest to opportunity is "fundamentally inconsistent with

the purpose of Title IX"). EIA’s attempts to shift the focus of

this long-standing inquiry into proportionality are unpersua-

sive.

Because EIA fails to provide any support for its equal pro-

tection challenge to JMU’s decision to eliminate ten athletic

teams, we affirm the district court’s dismissal of that claim.

Due Process

EIA also claims that JMU violated the substantive and pro-

cedural due process rights of the student-athletes on the teams

chosen for elimination. However, because EIA fails to iden-

tify a specific liberty or property interest that student-athletes

were deprived of as a result of JMU’s actions, we affirm the

district court’s dismissal of this claim.

In order to make out either a substantive or procedural due

process claim, a plaintiff must allege sufficient facts to sup-

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 29

port a finding that the student-athletes "were deprived of life,

liberty, or property, by governmental action." Beverati v.

Smith, 120 F.3d 500, 502 (4th Cir. 1997). A protected prop-

erty interest cannot be created by the Fourteenth Amendment

itself, but rather must be created or defined by an independent

source. See Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972);

Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 436

(4th Cir. 2002). In order to have a property interest in a bene-

fit, a person must have more than a mere "unilateral expecta-

tion of it" or "abstract need or desire for it." See Roth, 408

U.S. at 577.

The district court found that EIA failed to offer any support

for its claim that a property interest in "continued participa-

tion in intercollegiate athletics exists" under state law. District

Court Opinion, 675 F. Supp. 2d at 680. As the district court

noted, other courts have addressed this issue and have consis-

tently held that "the interest of the student athletes in partici-

pating in intercollegiate sports was not constitutionally

protected." Colo. Seminary v. Nat’l Collegiate Athletic Ass’n,

570 F.2d 320, 321 (10th Cir. 1978); see also Neosho Cmty.

Coll., 741 F. Supp. 854, 861 (D. Kan. 1990). On appeal, EIA

challenges the district court’s conclusion, but the cases it cites

are inapposite, relying, by and large, on contract theories.

Though individual athletes could have contract claims with

respect to lost scholarships,15 EIA fails to show how these

cases have established a property interest in intercollegiate

athletic participation.

EIA fails both to address this long-standing body of prece-

dent in its briefs and to provide support for its preferred out-

come. Accordingly, we conclude the district court properly

dismissed EIA’s due process claims against JMU.

15

This issue is not before the court, as EIA makes no due process claims

with respect to lost scholarships; JMU did not eliminate scholarships for

athletes on the teams that were cut.

30 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

Title IX

EIA argues in the alternative that JMU’s actions violated

the Three-Part Test and Title IX in that JMU "overdid its

elimination of male athletes." Appellant’s Br. 70. EIA alleges

that in the 2007-08 academic year, as a result of JMU’s cuts,

"men became the under-represented gender in JMU athletics,

by 2%, which represents 17 male athletic slots." Appellant’s

Br. 17. Because of this lack of exact proportionality, EIA

claims, JMU ultimately "violat[ed] the Three-Part Test to the

extent that it has any lawful effect." J.A. 296. This contention

misses the mark.

According to figures submitted by EIA, men made up

39.1% of JMU’s undergraduate population, but only 37.1% of

the university’s athletes in 2007-08. J.A. 455. However,

EIA’s figures are inconsistent with those collected by DOE.

Contrary to EIA’s assertions, the record demonstrates that, for

the 2007-08 academic year, 37.98% of athletic spots at JMU

were allocated to men (320 female athletic slots and 196 male

athletic slots), whereas men constituted 39.13% of the total

student body (10,608 women and 6,820 men). J.A. 311. Based

on these figures, men were only "underrepresented" by

1.15%, and not two percent as claimed by EIA.

Notwithstanding EIA’s mistaken calculations, the district

court correctly noted that the gap created by JMU’s attempts

to comply with the proportionality prong of the Three-Part

Test, regardless of whether it was one or two percent, was

insufficient by itself to establish a violation under Title IX, as

the DOE has expressly noted that determinations of what con-

stitutes "substantially proportionate" under the first prong of

the Three-Part Test should be made on a case-by-case basis.

1996 Clarification, reprinted at J.A. 415 ("Because this deter-

mination [of substantial proportionality] depends on the insti-

tution’s specific circumstances and the size of its athletic

program, [DOE] makes this determination on a case-by-case

basis, rather than through use of a statistical test."). Moreover,

EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION 31

as the district court noted, other courts that have addressed the

issue have found educational institutions to be in compliance

with Title IX where the sex disparity was similar to that

alleged by EIA. See, e.g., Boulahanis, 198 F.3d at 639 (find-

ing substantial proportionality where the number of male ath-

letes was within three percentage points of enrollment

following the elimination of men’s soccer and wrestling);

Miami Univ. Wrestling Club, 302 F.3d at 614 (noting success-

ful Title IX compliance where the number of female athletes

was within two percentage points of the number of female

students).

EIA provides no support for its contention that a disparity

as low as 2% (and, according to the record, not much above

1%) is substantially disproportionate as a matter of law. As

such, we affirm the district court’s dismissal of this claim.

EIA also alleges that JMU created "a further and larger

admitted gap in scholarship proportionality" as a result of its

cuts, in violation of DOE policies. Appellant’s Br. at 73.

Claiming that the difference in athletic participation created

an 11.94% disparity between male and female athletic schol-

arships, EIA contends that "JMU was $1.3 million away from

having its female scholarships fall within 1.0 percent of

women’s athletic participation." Id. EIA calls for retroactive

payments under Title IX, arguing that JMU’s cuts created this

disparity. Though the district court failed to reach the merits

of this claim, it is plain that EIA’s argument fails for several

reasons.

First, EIA cites to no authority for the proposition that a

scholarship allocation disparity of no more than one percent

is required by DOE policy. As with the participation gap,

DOE has not specified a magic number at which substantial

proportionality is achieved. See 1996 Clarification, reprinted

at J.A. 415 (noting, in the course of discussing participation

opportunities, that "in some circumstances it may be unrea-

sonable to expect an institution to achieve exact proportional-

32 EQUITY IN ATHLETICS, v. DEPARTMENT OF EDUCATION

ity"). Second, EIA fails to address whether and how this gap

has changed in the years since the initial cuts were made.

There is no dispute that some of the scholarship funds in

2007-08 went to "pay scholarships to former athletes on dis-

continued teams." Reply Br. 38. However, that need would

have been eliminated as those students graduated, no doubt

reducing the scholarship gap created after the cuts were ini-

tially made.

Finally, while the 11.94% disparity in scholarship alloca-

tion cited by EIA appears more substantial than the participa-

tion gap, the figure is based on the number of athletic slots at

JMU, and not the number of individual athletes. For the 2007-

08 academic year, for example, whereas each male athlete

participated on only one team, a number of women athletes

participated on more than one team such that there were actu-

ally only 240 individual female athletes compared to 196

male athletes. J.A. 311-313. Based on the 240 actual female

athletes—as opposed to female athletic slots—at JMU,

women only received 4.10% fewer scholarship dollars than

men.16 When calculated using individual athletes, the scholar-

ship gap is substantially smaller than that claimed by EIA.

VII.

The district court’s dismissal of EIA’s constitutional, statu-

tory, and procedural claims against DOE and JMU was

entirely proper. Accordingly, the judgment of the district

court is

AFFIRMED.

16

According to statistics collected by DOE for 2007-08, female athletic

teams received 50.94% of athletics-related student aid at JMU. J.A. 313.

Based on the actual number of female athletes (240) and not female ath-

letic slots (320), female athletes represented 55.04% of the total student

athletes at JMU in 2007-08. J.A. 311. 55.04% – 50.94% = 4.10%.