Of 729 athletes, 406 or 55.7% were male, and 323 or 44.3% were female. Given this clear disparity, EMU does not claim to provide "substantially proportionate" athletic opportunities to its female student-athletes. See, e.g.,Cohen I , 809 F.Supp. at 991 (university failed substantial proportionality prong when women were 48.2% of undergraduates but only 36.6% of athletes); Favia v. Indiana Univ. of Pa. , 812 F.Supp. 578, 584-85 (W.D. Pa. 1993) (no substantial proportionality when 55.61% of students and 37.77% of athletes were women). EMU correctly notes that a failure to achieve substantial proportionality does not, in itself, constitute a Title IX violation. SeeRoberts v. Colorado State Bd. of Agriculture , 998 F.2d 824, 831 (10th Cir. 1993). Rather, EMU finds a "safe harbor" if it satisfies the second or third parts of the Three-Part Test.
___ Plaintiffs have the burden of proving that the school has failed to meet the first prong. If successful, the burden then shifts to the Defendants who bear the burden under the second and third prongs. Favia v. Indiana Univ. of Pa., 812 F. Supp. 578, 584 (W.D. Pa. 1993) [hereinafter Fayia I]. In Cohen v. Brown Univ., 991 F.2d 888, 897-98 (Ist Cir. 1993) [hereinafter Cohen II], the First Circuit explained that universities that wish to remain on the "sunny side" of Title IX can do so by simply complying with the first factor. That is, compliance is satisfied when the school provides equal participation opportunities for men and women in proportion with the male to female ratio of the student body.
Although defendants argue that the language in the Investigator's Manual requires that plaintiffs demonstrate an overall violation of either 34 C.F.R. § 106.37(c) or 34 C.F.R. § 106.41(c)(1)-(10) in order to sustain a claim of discrimination under Title IX, the Court is satisfied that the regulations and Policy Interpretation allow for a showing of violation under 34 C.F.R. § 106.41(c)(1) only. The decisions in Favia v. Indiana University Of Pennsylvania, 812 F. Supp. 578 (W.D.Pa. 1993), and Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992), support this view. In Favia, female students sought reinstatement of two women's teams eliminated by the defendant university's budget reduction efforts.
Judge Cohill emphasized "[t]he opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not."Favia v. Indiana Univ. of Pennsylvania , 812 F.Supp. 578, 583 (W.D. Pa.), aff'd , 7 F.3d 332 (3d Cir. 1993).Id.
Divergence from Title IX's mandate in any one of these three areas constitutes a separate and distinct claim. See e.g., Beasley v. Ala. State Univ., 966 F.Supp. 1117, 1122 (M.D. Ala. 1997); Favia v. Indiana Univ. of Pa., 812 F.Supp. 578, 584-85 (W.D. Pa. 1993). Plaintiffs allege violations of all three areas of Title IX regulatory compliance of intercollegiate athletics, (see Doc. 2 at 18-19), but whether FIT has “fail[ed] to provide to Plaintiffs equal athletic participation opportunities, or to accommodate their interests and abilities” forms the basis of Plaintiffs' request for a preliminary injunction, (Doc. 28 at 7-8).
Financial exigency is not a defense to the gender equity requirements Title IX. Cohen II , 991 F.2d at 905 ; Favia v. Indiana Univ. of Pa. , 812 F. Supp. 578, 583 (W.D. Pa. 1993). Thus, Plaintiffs have shown that they possess a fair chance of succeeding on their Title IX claim for inequitable participation opportunities for female athletes at the University of Iowa.
See Kelley v. Board of Trustees, 35 F.3d 265, 268 (7th Cir. 1994) ("If substantial proportionality [under Prong One] has not been achieved, a school must demonstrate either that it has a continuing practice of increasing the athletic opportunities of the underrepresented sex ([Prong] 2) or that its existing programs effectively accommodate the interests of that sex ([Prong] 3)."); Ollier, 768 F.3d at 858 (noting that the school "can still satisfy Title IX if it proves" full and effective accommodation) (emphasis added). See Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578, 584 (W.D. Pa. 1993) (asserting, without citing any supporting authority, that "[d]efendants bear the burden of proof with respect to the second and third prongs"); Barrett v. West Chester University of Pennsylvania, 2003 WL 22803477, at *5 (E.D. Pa. Nov. 12, 2003) ("the burden is on [the university] to prove that [it] [satisfies] either the second or third prong") (citing Favia, 812 F. Supp. at 584); Choike v. Slippery Rock University, 2006 WL 2060576, at *7 (W.D. Pa. July 21, 2006) (noting, without citing any supporting authority, that "[i]f Plaintiffs [demonstrate that the university has not satisfied Prong One] then the burden shifts to [the university] to demonstrate [satisfaction] under either the second or third prongs"). See Cohen, 991 F.2d at 895 ("[A] court assessing Title IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution's student constituency, on the one hand, and its athletic programs, on the other hand.");
This, by definition, is not program expansion. See Favia v. Indiana Univ. of Penn., 812 F.Supp. 578, 585 (W.D.Pa.1993) (holding that the defendants failed to demonstrate compliance with Prong Two where “the levels of opportunities for women to compete went from low to lower.”)
The difficulty arises because, in the context of athletics, the plain meaning of Title IX has been limited by the implementing regulations, the policy interpretation of those regulations and the case law interpreting each of these sources. See Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993); Roberts v. Colorado State, 998 F.2d 824 (10th Cir. 1993); Cook v. Colgate University, 992 F.2d 17 (2d Cir. 1993); Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D.Penn. 1993); 34 C.F.R. § 106.41 (1993); 44 Fed.Reg. 71413-23 (1979). Quite frankly, these interpretations have converted Title IX from a statute which prohibits discrimination on the basis of sex (defined as the elimination of or exclusion from participation opportunities), into a statute which provides "equal opportunity for members of both sexes."
In Cohen II and Kelley the courts held that 34 CFR § 106.41 deserved controlling weight under Chevron and that the OCR Policy Interpretation deserved substantial deference under Martin. See Cohen II, 101 F.3d at 173; Kelley, 35 F.3d at 270-71; see also Favia v. Indiana Univ. of Penn., 812 F. Supp. 578, 584 (W.D. Pa.) (holding that "OCR's policy interpretation deserves our great deference" under Chevron), aff'd 7 F.3d 332 (3d Cir. 1993). Similarly, in the case before us, the 1996 OCR Clarification and the Cantu letter explaining it merit deference under Martin.