VIA FACSIMILE AND FEDERAL EXPRESS

March 23, 2007

Susan Wheeler, Esq. 
Vice President of Academic Affairs
Alum 101
MSC 7607
James Madison University
Harrisonburg VA 22807

            Re:       Equity in Athletics, Inc.

Dear Ms. Wheeler:

On behalf of our client Equity in Athletics, Inc. (“EIA”), this advises James Madison University (“JMU”) that EIA has filed a federal lawsuit to challenge the U.S. Department of Education’s “Three-Part Test” under Title IX of the Education Amendments of 1972. We write now to put JMU on notice of EIA’s position and to ask JMU to defer its planned cuts of ten athletic teams until EIA’s litigation establishes the Title IX standard applicable in Virginia. If JMU does not defer those cuts at the Board of Visitors meeting on March 30, 2007, EIA sees little option but to add JMU an appropriate individual actors as defendants and to move to vacate and preliminarily to enjoin the planned cuts.

By way of introduction, as of this morning, EIA’s rapidly growing membership included approximately 200 JMU parents, alumni, student-athletes, and coaches, including members of all ten teams scheduled for elimination. As a JMU alumnus myself and as counsel to an organization with a significant JMU membership, we have no desire to sue JMU. Our quarrel is with the federal standards and the federal regulators, who have misled JMU and EIA’s members alike.

Throughout the ordeal over these ten teams, JMU has steadfastly and appropriately said that it seeks to comply with Title IX’s requirements. As explained in the enclosed complaint in Equity in Athletics, Inc. v. U.S. Department of Education, No. 5:07-0028-GEC (W.D.Va.)(complaint enclosed with FedEx copy), however, Title IX does not require JMU to cut those ten teams. Quite the contrary, Title IX prohibits those cuts. Because they violate Title IX, moreover, the cuts violate both Virginia’s Human Rights Act and JMU’s charter. Significantly for JMU’s attempt to comply with Title IX, EIA asks the Court not only to vacate the Three-Part Test prospectively, but also to declare it void ab initio and to find that it never lawfully took effect. In essence, JMU is steering itself to a mirage, not a safe harbor. Put another way, we are not trying to move JMU’s goal post: that goal post does not exist.

In the balance of this letter, we try to anticipate and to answer questions that you, JMU’s administration, and the Board of Visitors may have. If you need any information or explanation beyond this letter, please do not hesitate to contact me at the number above or my co-counsel Larry Joseph at 202-669-5135. If it might help to meet in person with you or Jack Knight in Harrisonburg or Richmond, Mr. Joseph will drive down, and I could attend telephonically from New Mexico. Alternatively, I would greatly enjoy returning to Harrisonburg for a meeting with appropriate principals .

Although JMU undoubtedly believed that the Three-Part Test constitutes a current and valid interpretation of Title IX’s implementing regulations, it is not. We are confident that Judge Conrad will agree for several reasons, including the following:

Ø      Decisions from Other Circuits Do Not Control. Neither the Western District of Virginia nor the Fourth Circuit has ruled on the Three-Part Test, and decisions from other circuits cannot control here. Virginia Society for Human Life, Inc. v. Federal Election Comm'n, 263 F.3d 379, 393 (4^th Cir. 2001). Moreover, prior extra-circuit decisions are not persuasive for several reasons discussed below: (a) they misconstrued the Department of Education’s authority; (b) they improperly deferred to the Department; and (c) they did not consider the administrative record and procedural requirements that would apply if the Department or its predecessor intended to adopt the Three-Part Test as a standard for Title IX compliance.

Ø      The Department Lacks Authority to Issue Disparate-Impact Requirements. Many of the extra-circuit decisions that uphold the Three-Part Test rely explicitly or implicitly on the federal agencies’ authority to issue disparate-impact regulations under the intentional-discrimination statutes like Title IX and Title VI. In Alexander v. Sandoval, 532 U.S. 275, 281-82 (2001), however, a supervening decision of the Supreme Court ruled that agencies lacked such authority. Indeed, in April 2001, Sandoval rejected as dicta the very authority on which the federal government previously had relied as support for agencies’ authority for such regulations under Title IX. Compare id. with U.S. Dep’t of Justice, Title IX Legal Manual, 64 & n.48 (Jan. 11, 2001) (www.usdoj.gov/crt/cor/coord/ixlegal.pdf).

Ø      The Three-Part Test Does Not Warrant Deference. All of the extra-circuit decisions that uphold the Three-Part Test rest on controlling “Chevron” deference to the Department of Education’s interpretation of Title IX. In United States v. Mead Corp., 533 U.S. 218, 227-28 (2001), however, a supervening decision of the Supreme Court re-established the lesser standard of “Skidmore” deference for regulatory regimes that (like Title IX) provide the same authority to more than one agency actor.

Ø      The Three-Part Test Is Procedurally Invalid. The Three-Part Test (as subsequently reinterpreted by the Department in 1996 and 2003, purports to change a regulation that required equal opportunity, based on the gender’s relative interest, into equal participation based on enrollment. Even if such a standard was substantively lawful, that change would require notice-and-comment rulemaking. The Department’s predecessor recognized as much, and expressly did not take the steps required to implement such a change. Oblivious to the fine distinctions that its predecessor made in 1979, the Department’s 1996 and 2003 actions purport to create a legal requirement that the Department simply cannot create by memorandum.

Ø      The Three-Part Test Is Not in Effect. Like its Title VI template, Title IX provides that agencies must act by rule, regulation, or order of general applicability, and provides that such actions do not take effect until approved by the President. 42 U.S.C. § 2000d-1; 20 U.S.C. §1682.[1] The legislative history makes clear that such approval meant signed by the President in the Federal Register.[2] 110 Cong. Rec. 2499-00 (1964) (Rep. Lindsay). As demonstrated by the partial list in the margin, Congress repeatedly cited the presidential-approval requirement as the bulwark against bureaucratic overreaching.[3] As the administrative record for the Three-Part Test demonstrates, the Department’s predecessor expressly did not seek to comply with any of the applicable procedures (including presidential approval) because the Three-Part Test was neither binding nor a test for Title IX compliance.

Ø      Quotas Are Unconstitutional in Any Event. In its one departure from Title VI, Congress included Title VII’s restriction against preferential treatment based on imbalances with the total population, 20 U.S.C. §1681(b), which is “designed to prevent…. undue ‘Federal Government interference…. because of some Federal employee’s ideas of…. balance.’” United Steelworkers of Am. v. Weber, 443 U.S. 193, 206-07 (1979) (citations omitted). Although that provision allows courts and agencies to consider “statistical evidence” in a specific “hearing or proceeding,” 20 U.S.C. §1681(b), it “would be contrary to Congress’ clearly expressed intent” to allow “quotas and preferential treatment [to] become the only cost-effective means of avoiding expensive litigation.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 993 (1988) (plurality); accord Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 652-53 (1989). Thus, even if the Three-Part Test is a grammatical interpretation of the Title IX regulations, it is not a lawful one. See Kentuckians for Commonwealth Inc. v. Rivenburgh, 317 F.3d 425, 439-40 (4^th Cir. 2003) (no deference to regulatory interpretation that makes the regulation unlawful). Finally, “outright… balancing [] is patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003); Truax v. Raich, 239 U.S. 33, 36-38 (1915). As a state school, JMU must comply with the Equal Protection Clause even if the Department’s memoranda somehow authorize quotas under Title IX.

Ø      Prior Challenges to the Department Will Not Control. Finally, as you may know, the administrative record on the Three-Part Test surfaced in litigation against the Department initiated by the National Wrestling Coaches Association (“NWCA”), in which the Department prevailed. The government’s successful defense in NWCA hinged on standing, with the D.C. Circuit’s accepting the Department’s argument that NWCA did not establish redressability because NWCA did not establish that independent parties (i.e., schools), not before the court, would change their actions if NWCA prevailed. Cf. Bennett v Spear, 520 U.S. 154, 169 (1997) (“While… it does not suffice if the injury complained of is th[e] result [of] the independent action of some third party not before the court, that does not exclude injury produced by determinative or coercive effect upon the action of someone else”) (citations and quotations omitted, emphasis in original). The Department will not have that argument here for two reasons. First, as a matter of Virginia law, “[c]onduct that violates any Virginia or federal statute or regulation governing discrimination on the basis of… sex… shall be an ‘unlawful discriminatory practice’ for the purposes of [the Virginia Human Rights Act].” Va. Code §2.2-3901. Thus, the court can assume redressability because – in establishing what Title IX requires – EIA will effectively establish what Virginia law requires. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 45 n.25 (1976) (private injury traceable to government action if injurious conduct “would have been illegal without that action”). Second, either JMU will advise the Court through public statements that it will defer the cuts pending the litigation, or JMU will not be an independent party not before the court.

Like many schools before it, JMU has relied on the Three-Part Test. Unlike any other school ever, JMU faces a legal challenge from a plaintiff armed with the administrative record of the Three-Part Test. We hope that JMU will recognize that this is simply not JMU’s fight. Recognizing that we have presented you with a lot of information, we will do everything we can to assist you in understanding EIA’s position. Ultimately, however, JMU has the responsibility to comply with the law. As this short letter and the enclosed complaint demonstrate, JMU should have serious questions whether the planned cuts indeed comply. EIA will defer action until after the Board of Visitors meet on March 30 and would welcome the opportunity to present to the Board at that meeting. If the Board does not make a favorable decision at that meeting, the time to resolve this matter outside of litigation will pass in days, not weeks. For the students under its charge, we ask JMU to defer the cuts pending the litigation.

            As a courtesy, we will keep this letter confidential until the close of business on Monday, April 2, 2007. We are open to extending that courtesy, consistent with the timeframe outlined above. We look forward to hearing from you.

                                                            Very truly yours,

                                                                /signed/

                                                            Douglas G. Schneebeck

DGS:sb

Cc:       Larry Joseph, Esq.
           Thomas H. Miller, Esq.
           John A. Licata
           John. F. Knight, Esq.

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