UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1914
EQUITY IN ATHLETICS, INCORPORATED,
Plaintiff - Appellant,
v.
THE UNITED STATES DEPARTMENT OF EDUCATION; MARGARET SPELLINGS,
Secretary of Education, in her official and individual
capacity; STEPHANIE MONROE JOHNSON, Assistant Secretary for
Civil Rights, in her official and individual capacity; UNITED
STATES OF AMERICA; JAMES E. HARTMAN, Visitor; JEFFREY T.
BOURNE, Athletics Director; MARK T. BOWLES, Visitor; JAMES
SCOTT BRIDGEFORTH, Visitor; JOSEPH F. DAMICO, Rector; RONALD
C. DEVINE, Visitor; LOIS J. FORBES, Visitor; CHARLES H.
FOSTER, Visitor; JOHN GROVER, Visitor; JAMES MADISON
UNIVERSITY; STEPHEN R. LEEOLOU, Visitor; E. RAY MURPHY,
Visitor; WHARTON B. RIVERS, Visitor; LARRY M. ROGERS, Visitor;
LINWOOD H. ROSE, President; JUDITH STRICKLER, Visitor;
MEREDITH STROHM GUNTER, Vice Rector; THE VISITORS OF JAMES
MADISON UNIVERSITY; LINDA ZECHER, Visitor; JOHN DOES, 1-200,
in their official and/or individual capacity; JOHN DOE,
Entities 1-200,
Defendants - Appellees.
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AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; NATIONAL WOMEN’S LAW
CENTER; WOMEN’S SPORTS FOUNDATION,
Amici Supporting 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: March 18, 2008 Decided: August 20, 2008
Before MICHAEL and GREGORY, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Hansen wrote the
opinion, in which Judge Michael and Judge Gregory joined.
ARGUED: Lawrence John Joseph, Washington, D.C., for Appellant.
William Eugene Thro, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia; Thomas Mark Bondy, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Douglas G.
Schneebeck, MODRALL SPERLING, Albuquerque, New Mexico, for
Appellant. Jeffrey S. Bucholtz, Acting Assistant Attorney General,
UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Appellate
Section, Washington, D.C.; John L. Brownlee, United States
Attorney, Roanoke, Virginia; Barbara C. Biddle, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees.
Robert F. McDonnell, Attorney General of Virginia, Stephen R.
McCullough, Deputy State Solicitor General, William C. Mims, Chief
Deputy Attorney General, John F. Knight, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for the University Appellees. Jocelyn Samuels, Dina R.
Lassow, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., for Amici
Supporting Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
HANSEN, Senior Circuit Judge:
Equity in Athletics, Inc. ("EIA") sought a preliminary
injunction to prevent James Madison University ("JMU") from
eliminating seven men's sports and three women's sports from its
intercollegiate athletic program. EIA claimed that JMU
intentionally discriminated against male athletes in violation of
the United States Constitution and in violation of Title IX of the
Education Amendments of 1972. Because the district court did not
abuse its discretion in concluding that EIA failed to meet the
Blackwelder1 factors, we affirm the district court's denial of
EIA's motion for a preliminary injunction.
I.
Title IX provides 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 program or activity receiving Federal financial
assistance." 20 U.S.C. § 1681(a). Title IX did not specifically
address its application to athletics, and in 1974, Congress
directed the Secretary of Health, Education, and Welfare ("HEW") to
promulgate regulations, "which shall include with respect to
intercollegiate athletic activities reasonable provisions
1
Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189
(4th Cir. 1977).
3
considering the nature of particular sports." McCormick v. Sch.
Dist. of Mamaronek, 370 F.3d 275, 287 (2d Cir. 2004) (quoting
Education Amendments of 1974, Pub. L. No. 93-380, § 844, 88 Stat.
484, 612 (1974)). HEW followed the rulemaking procedures in
promulgating 45 C.F.R. § 86.41 in 1975, which provides that "[a]
recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics shall provide equal
athletic opportunity for members of both sexes." § 86.41(c). One
of the ten factors listed as assisting in that determination is
"[w]hether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of
both sexes." § 86.41(c)(1).2
EIA does not contest the validity of 45 C.F.R. § 86.41.
Rather, at issue here is a Policy Interpretation issued by HEW in
1979 intended to provide further guidance for the 1975 regulation
and subsequent clarifications of the Policy Interpretation. The
Policy Interpretation provides, in part, that:
[I]nstitutions must provide both the opportunity for
individuals of each sex to participate in intercollegiate
competition, and for athletes of each sex to have
2
Congress divided HEW into two agencies in 1979, the
Department of Health and Human Services and the Department of
Education ("DOE"). "HEW's functions under Title IX were
transferred . . . to the [DOE]." N. Haven Bd. of Educ. v. Bell,
456 U.S. 512, 516 n.4 (1982) (citing 20 U.S.C. § 3441(a)(3)). The
DOE subsumed functions from five separate departments and
subsequently consolidated the regulations of those five departments
into one title of the Code of Federal Regulations at Title 34. DOE
recodified 45 C.F.R. § 86.41 at 34 C.F.R. § 106.41.
4
competitive team schedules which equally reflect their
abilities.
(a) Compliance will be assessed in any one of the
following ways:
(1) Whether intercollegiate level participation
opportunities for male and female students are provided
in numbers substantially proportionate to their
respective enrollments. . . .
44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979) ("1979 Policy
Interpretation"). This provision, which also lists two other
methods of compliance not at issue here, has come to be known as
the "Three-Part Test.” The DOE issued a Clarification to the 1979
Policy Interpretation in 1996, indicating that institutions needed
to comply with only one part of the Three-Part Test; DOE issued a
Further Clarification in 2003, expressing that the 1979 Policy
Interpretation did not require reductions to men's teams or the use
of quotas; and it issued an Additional Clarification in 2005,
reiterating that each part of the Three-Part Test was an equally
sufficient and separate method of complying with Title IX.
James Madison University (JMU) is a state-sponsored university
in Virginia and receives federal funds. In an effort to comply
with Title IX with respect to its athletic program, JMU's Board of
Visitors voted on September 29, 2006, to eliminate seven men's
sports (archery, cross country, gymnastics, indoor and outdoor
track, swimming, and wrestling) and three women's sports (archery,
fencing, and gymnastics) to obtain proportionality between the
gender makeup of its athletic programs and its undergraduate
5
enrollment. At the time, JMU's undergraduate population was
divided 61% female and 39% male, while its student athletes were
51% female and 49% male. The proposed cuts relied on the first
part of the Three-Part Test and were designed to put JMU's student-
athlete population in a similar male/female ratio as its general
student population. The Board issued a press release explaining its
decision the same day. It also issued a "Title IX Statement" on
February 8, 2007, further addressing the reasoning behind the cuts,
which were to be effective as of July 1, 2007.
Athletes, coaches, and fans formed EIA, a not-for-profit
organization, to fight the proposed cuts. EIA filed suit in
federal court against the DOE, the Secretary of Education, the
Assistant Secretary for Civil Rights, the United States
(collectively "the federal defendants"), and various John Does on
March 19, 2007. EIA challenged the Title IX interpretive
guidelines, specifically the Three-Part Test and its subsequent
clarifications, as violating the Constitution, Title IX, and the
Administrative Procedures Act and as permitting colleges to engage
in the kind of gender-conscious decisionmaking that Title IX was
intended to prohibit. EIA sought declaratory and injunctive relief
that would vacate the allegedly unlawful guidelines and would
require the DOE to issue new rules consistent with Title IX and the
Constitution.
6
EIA subsequently requested JMU to defer implementing the
decision to cut the programs until EIA's challenge to the federal
guidelines was complete. JMU declined, and EIA amended its
complaint to include JMU as a defendant on June 1, 2007. EIA filed
a motion for a preliminary injunction on June 15, 2007, addressed
solely against JMU, seeking to prevent JMU from taking any
additional steps to eliminate the targeted programs. After holding
an evidentiary hearing, the district court denied the motion on
August 21, 2007. See Equity in Athletics, Inc. v. Dep't of Educ.,
504 F. Supp. 2d 88 (W. D. Va. 2007). EIA brings this interlocutory
appeal. See 28 U.S.C. § 1292(a)(1).
II.
We review the district court's denial of a motion for a
preliminary injunction for an abuse of discretion, accepting its
factual findings unless they are clearly erroneous and reviewing
its legal conclusions de novo. See Child Evangelism Fellowship of
Md., Inc. v. Montgomery County Pub. Sch., 373 F.3d 589, 593 (4th
Cir. 2004). "In determining whether to grant a preliminary
injunction, a court must balance: (1) the likelihood of irreparable
harm to the plaintiff if the injunction is denied; (2) the
likelihood of harm to the defendant if it is granted; (3) the
likelihood that the plaintiff will succeed on the merits; and (4)
the public interest." Id. (referring to the Blackwelder factors).
7
Our court places the most emphasis on the first two factors,
the balancing of the harms. See In re Microsoft Corp. Antitrust
Litig., 333 F.3d 517, 526 (4th Cir. 2003). If the balance is
fairly equal, a stronger showing of likelihood of success is
required. However, if the balance of harm tilts more decidedly
toward the moving party, the party can meet the likelihood of
success factor by raising questions about the merits that are
sufficiently "serious, substantial, difficult and doubtful, as to
make them fair ground for litigation and thus for more deliberate
investigation." Id. We are mindful nonetheless that the four
factors “are intertwined and each affects in degree all the
others.” Blackwelder, 550 F.2d at 196; see also Quince Orchard
Valley Citizens Ass'n v. Hodel, 872 F.2d 75, 79 (4th Cir. 1989)
("[I]f the likelihood of success is remote, there must be a strong
showing of the probability of irreparable injury to justify the
issuance of the injunction." (internal marks omitted)). We give
deference to the district court's balancing of the harms. See U.S.
Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 289 (4th Cir.
2006) ("In balancing the relative harms, . . . the district court
did not abuse its discretion."); Faulkner v. Jones, 10 F.3d 226,
229 (4th Cir. 1993) ("Balancing the relative harms of the parties
on a scale adjusted by the plaintiff's likelihood of success on the
merits, we now conclude that the district court did not abuse its
discretion in issuing the preliminary injunction . . . .").
8
The district court determined that the balance of harms was
not so decidedly in EIA’s favor that a lesser showing of likelihood
of success on the merits was warranted. See Ciena Corp. v.
Jarrard, 203 F.3d 312, 323 (4th Cir. 2000) (noting that the
likelihood of success on the merits can be reduced when the balance
of harms "tilts sharply and clearly in the plaintiff's favor"
(internal marks omitted)). The district court recognized the harm
to the student-athletes of not being able to compete in the sport
and at the university of their choice, but it also noted that the
student-athletes would not lose their scholarship funding if they
chose to stay at JMU and that the students were free to transfer to
other colleges offering their chosen sport, which some of the
students had done, so that those athletes were still able to
compete at the college level. On the other side of the scale, the
district court recognized the harm to JMU of not having control
over which athletic programs it offered and the administrative
difficulty and the cost to JMU of having to reinstate the
eliminated programs. The court gave significant weight to the
timing of EIA's request for a preliminary injunction. JMU approved
and publicized the program cuts on September 29, 2006, and issued
its Title IX Statement on February 8, 2007. EIA filed its initial
suit against the federal defendants on March 19, 2007, but it did
not make JMU a party to the suit until June 1, 2007. Further, the
motion for a preliminary injunction was not filed until June 15,
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2007, a mere fifteen days prior to the date the cuts were scheduled
to go into effect. In anticipation of the upcoming college year,
coaches had already been terminated, competitions had been
cancelled, and $350,000 in funding had been reallocated to other
athletic programs. See Quince Orchard Valley Citizens Ass'n, 872
F.2d at 79-80 ("[A] period of delay may . . . indicate an absence
of the kind of irreparable harm required to support a preliminary
injunction." (internal marks omitted)). Upon review, the balance
of the harms here is not so one-sided that we can say that the
district court either abused its discretion or clearly erred in its
identification and assessment of the harms. Cf. Cohen v. Brown
Univ., 991 F.2d 888, 904-05 (1st Cir. 1993) (Cohen I) (holding that
the record supported, though it did not compel, the district
court’s finding of irreparable injury to women athletes seeking to
enjoin Brown University from cutting its volleyball and women’s
gymnastics teams against Brown’s claim of financial harm and
upholding the district court’s conclusion against an abuse of
discretion standard); Martin v. Int'l Olympic Comm., 740 F.2d 670,
675 (9th Cir. 1984) (accepting district court's balancing between
potential Olympic athletes' harm in missing once-in-a-lifetime
Olympic opportunity and the incremental burden on the Olympics
organization committee if it had to organize two additional track
and field events for women where the district court found the
athletes' harm outweighed the harm to the Olympic committee, but
10
denied a preliminary injunction based on the failure to show a
likelihood of success on the merits).
Absent an “imbalance of hardship in favor of the plaintiff,
then the probability of success begins to assume real significance,
and interim relief . . . require[s] a clear showing of a likelihood
of success.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335,
339 (4th Cir. 2001) (internal marks omitted). EIA spends most of
its time trying to convince us that the 1979 Policy Interpretation
was not properly promulgated, and therefore it is void ab initio
and is not entitled to any deference. We are limited in this
interlocutory appeal, however, to addressing only those issues
relevant to the denial of the motion for a preliminary injunction,
a motion addressed only against JMU. EIA’s claims against JMU
allege that JMU engaged in intentional discrimination in violation
of Title IX, the Constitution’s equal protection guarantee,
substantive due process of law, and the Virginia Human Rights Act.
Specifically, EIA argues that Title IX requires that schools
provide “equal opportunity” based on “athletic interest,” not
“equal participation” based on “enrollment.” EIA also argues that
using gender as a factor to determine which programs to cut amounts
to intentional gender discrimination.3 We focus our attention on
3
EIA also raises a First Amendment right of association claim
for athletes participating in sports that were not cut but who wish
to train with the athletes whose sports were cut. EIA clarified
during oral argument that it was not asserting a separate First
Amendment cause of action, but raised the issue for purposes of
11
these claims against JMU in assessing whether EIA has sufficiently
established a likelihood of success on the merits to entitle it to
a preliminary injunction against JMU.
Courts have consistently rejected EIA's underlying claim that
equal opportunity under § 86.41 should be tied to expressed
interest rather than actual participation. See Neal v. Bd. of Trs.
of Cal. State Univ., 198 F.3d 763, 767 (9th Cir. 1999) (reversing
grant of preliminary injunction, noting that "Appellees' argument
that equal opportunity is achieved when each gender's athletic
participation roughly matches its interest in participating is
hardly novel," and that "[s]everal courts of appeals have
considered and rejected Appellees' approach as fundamentally
inconsistent with the purpose of Title IX"); Boulahanis v. Bd. of
Regents, 198 F.3d 633, 638-39 (7th Cir. 1999) ("[T]he elimination
of men's athletic programs is not a violation of Title IX as long
as men's participation in athletics continues to be 'substantially
proportionate' to their enrollment."), cert. denied, 530 U.S. 1284
(2000); Cohen v. Brown Univ., 101 F.3d 155, 174 (1st Cir. 1996)
(Cohen II) ("Brown's relative interests approach cannot withstand
scrutiny on either legal or policy grounds, because it
disadvantages women and undermines the remedial purposes of Title
arguing that the Equal Protection claim deserved a heightened level
of scrutiny. However, EIA offers no authority for such an
argument, and we note that gender-based Equal Protection claims
already enjoy a heightened level of scrutiny. See Knussman v.
Maryland, 272 F.3d 625, 635 (4th Cir. 2001) ("[A] gender
classification is subject to heightened scrutiny.").
12
IX by limiting required program expansion for the underrepresented
sex to the status quo level of relative interests." (internal
citations and marks omitted)), cert. denied, 520 U.S. 1186 (1997).
Courts have also rejected Equal Protection claims similar to EIA's
constitutional claims against JMU. See Neal, 198 F.3d at 773
("Title IX does not bar universities from taking steps to ensure
that women are approximately as well represented in sports programs
as they are in student bodies."); Boulahanis, 198 F.3d at 639
(rejecting equal protection challenge and holding that "[t]he
elimination of sex-based discrimination in federally-funded
educational institutions is an important government objective, and
the actions of Illinois State University in eliminating the men's
soccer and men's wrestling programs were substantially related to
that objective"); Kelley v. Bd. of Trs., 35 F.3d 265, 272 (7th Cir.
1994) (“To the extent that plaintiffs' argument is that Title IX
and the applicable regulation . . . are unconstitutional, it is
without merit.”), cert. denied, 513 U.S. 1128 (1995).
Although many of these cases rely, at least in part, on the
1979 Policy Interpretation and its Three-Part Test, many of them
rejected claims that the Policy Interpretation was inconsistent
with Title IX itself or violated the Constitution. See McCormick,
370 F.3d at 290 (finding the 1979 Policy Interpretation to be “both
persuasive and not unreasonable” in implementing Title IX); Miami
Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 615 (6th Cir.
13
2002) (finding the 1979 Policy Interpretation consistent with Title
IX); Neal, 198 F.3d at 770-71 ("[T]he plain meaning of the
nondiscrimination principle set forth in 20 U.S.C. § 1681(a) does
not bar remedial actions designed to achieve substantial
proportionality between athletic rosters and student bodies.");
Cohen I, 991 F.2d at 899 (holding that the 1979 Policy
Interpretation “stands upon a plausible, if not inevitable, reading
of Title IX”); see also Chalenor v. Univ. of N.D., 291 F.3d 1042,
1047 n.4 (8th Cir. 2002) (“[T]he [Policy] [I]nterpretation has
guided the Office for Civil Rights' enforcement of
nondiscrimination in athletics for over two decades, without change
from Congress. No court has ever held it to be invalid.”).
Even if the promulgation of the 1979 Policy Interpretation
involved procedural irregularities as EIA argues, the cases
discussed above raise a serious doubt about whether EIA will be
successful on the merits of its claims against JMU that JMU
violated Title IX or the Constitution in using gender to select
which athletic programs to cut. See Kelley, 35 F.3d at 272
("[I]nsofar as the University actions were taken in an attempt to
comply with the requirements of Title IX, plaintiffs' attack on
those actions is merely a collateral attack on the statute and
regulations and is therefore impermissible."). While EIA's claims
against the federal defendants concerning the procedural validity
of the 1979 Policy Interpretation raise novel issues, EIA offers no
case directly on point that supports its challenge to the
14
procedural validity of the 1979 Policy Interpretation. In the end,
there are no cases directly supporting EIA's procedural challenges
to the 1979 Policy Interpretations, and yet nearly every circuit in
the country has rejected challenges similar to EIA's underlying
complaint against JMU, i.e., that JMU violated Title IX and the
Constitution when it used gender to determine which athletic
programs to cut. We agree with the district court that EIA has
failed to establish a likelihood of success on its claims against
JMU sufficient to entitle it to a preliminary injunction.
The final factor to be considered on a motion for a
preliminary injunction is the public interest. The district court
sympathized with the student-athletes affected by the cuts,
characterizing them as "innocent victims" of Title IX's remedial
effects. Given the current state of the law related to Title IX's
effect on athletic programs, however, the district court did not
clearly err in determining that the public interest favored JMU's
ability "to chart [its] own course in providing athletic
opportunities without judicial interference or oversight, absent a
clear showing that [it is] in violation of the law." 504 F. Supp.
2d at 112 (internal marks omitted).
III.
EIA has failed to establish that the district court abused its
discretion in applying the Blackwelder factors and in rejecting
15
EIA's motion for a preliminary injunction. We affirm the district
court's judgment.
AFFIRMED
16