MIAMI UNIVERSITY WRESTLING CLUB; Miami University Soccer Club; Miami University Tennis Club; Michael Ambrose; Nathan Studney; Christopher Tangen; Terrence Wright; Ryan Pallinger; Shaun Soucie; Jason Murphy; Nicholas Binge; Steven Mario Contardi; William S. Bloom, Plaintiffs-Appellants, v. MIAMI UNIVERSITY; James C. Garland; Joel Maturi; Wayne R. Embry; Richard Farmer; Roger L. Howe; Eleanor B. Irwin; Fred Lick, Jr.; Laurel Pressler; Kathleen M. Zouhary; Chandra R. Shah; Fred G. Wall, in their official capacities, Defendant-Appellees.
No. 01-3182
United States Court of Appeals, Sixth Circuit
Argued: August 7, 2002. Decided and Filed: September 9, 2002.
302 F.3d 608
Before SUHRHEINRICH and BATCHELDER, Circuit Judges; LITTLE, District Judge.
James A. Dyer (argued and briefed), Kevin A. Bowman (briefed), Sebaly, Shillito & Dyer, Dayton, OH, Robin L. Parker (briefed), Miami University, Oxford, OH, for Defendants-Appellees.
*OPINION
BATCHELDER, Circuit Judge.
1. The plaintiffs appeal the district court‘s orders granting summary judgment in favor of the defendants on the plaintiffs’ equal protection claim, dismissing the plaintiffs’ Title IX сlaim and denying the plaintiffs’ motion for class certification. We find that the plaintiffs wholly failed to state either an equal protection claim or a claim under Title IX, and that the district court‘s denial of the motion for class certification was within the court‘s sound discretion. We will therefore affirm the judgment dismissing this action.
PROCEDURAL HISTORY
2. On November 18, 1999, the plaintiffs1 filed a complaint against the defendants,2 claiming that the defendants’ elimination of the men‘s wrestling, tennis and soccer programs at Miami University [hereinafter “Miami“], a state university of the State of Ohio and a recipient of federal funds, constituted gender discrimination in violation of
3. The claims in both complaints were identical: they alleged first, that by eliminating the men‘s wrestling, tennis and soccer programs because of the gender of the participants, the defendants discriminated against the plaintiffs on the basis of sex, excluded them from participation in educational programs because of their sex, and denied them the benefits of educational programs because of their sex, in violation of Title IX and its implementing regulations,
5. Meanwhile, the plaintiffs filed a motion for class certification and а second amended complaint, which was identical to the first amended complaint but for the addition of an alternative due process claim. The district court remanded the case to a magistrate judge for reevaluation of the parties’ discovery needs in light of the order for partial dismissal, but advised that it intended to hold the motion for class certification in abeyance until it had considered a motion for summary judgment to be filed by the individual defendants on the sole remaining equal protection claim. Upon the completion of the limited discovery allowed by the magistrate judge, the plaintiffs moved for reconsideration of the order dismissing the Title IX claim.
6. After the individual defendants filed the anticipated motion for summary judgment, the district court issued a memorandum and order granting the summary judgment motion and denying the motion for reconsideration. It also denied as moot all othеr pending motions, including the plaintiffs’ motion for class certification. This timely appeal followed.
STATEMENT OF FACTS
7. In 1984, the Office of Civil Rights (“OCR“), which enforces Title IX, conducted a comprehensive review of Miami in response to a complaint filed with that office alleging that Miami discriminated against women in the opportunity to receive coaching and in the accommodation of student interests and abilities. The OCR determined that the “rates of partiсipation in athletics [did] not correspond to the percentage of male and female students,” but that the proposed addition of women‘s sports such as cross country would address this problem.
8. In 1993, Miami conducted a Title IX self-evaluation, and in 1994, a task force issued a report and recommendation regarding intercollegiate athletics, which revealed that in 1993, females constituted fifty-four percent of the Miami student body, while they сontributed only twenty-nine percent of Miami‘s student-athletes. While female athletic teams were added between 1993 and 1997, female students, who comprised fifty-five percent of Miami‘s undergraduate population in 1997, contributed only forty-two percent of its student-athletes. In twenty-five years, Miami had added only four female varsity teams, and there was unmet female interest in equestrian, crew, golf, lacrosse and water polo. Moreover, Miami spent proportionally more on male than female athlete recruiting and financial aid.
9. In light of those statistics and the lack of additional funds to increase athletic opportunities for female students, Miami‘s Athletic Policy Committee concluded, with the assistance of Lamar Daniel, Inc., an independent consultant which conducted a study and formulated a compliance plan in 1996-97, that in order to comply with Title IX, the university would neеd to eliminate some athletic opportunities for male students. After rejecting all alternatives, Miami‘s President, James Garland, and Athletic Director, Joel Maturi, recommended to the Miami Board of Trustees [hereinafter “Trustees“] the elimination the men‘s golf, soccer, tennis and wrestling teams as of the end of the 1998-99 academic year. On April 16, 1999, the Trustees, unable to identify other viable options, voted to eliminate the men‘s soccer, tennis and wrestling teams. Men‘s golf ultimately was not cut because the participants and alumni raised sufficient funds to support the program without Miami‘s financial assistance.
HISTORY OF TITLE IX
A. Title IX
11. Title IX was enacted as part of the Education Amendments of 1972, Pub.L. 92-318, §§ 901-05, 86 Stat. 373-75 (codified at
B. 1975 Implementing Regulations
12. Section 902 authorizes and directs each Federal department empowered to extend Federal financial assistance to issue implementing rules and regulations.
The regulations provide that
13. [n]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
14.
C. 1979 Policy Interpretation
15. In 1978, HEW, to encourage self-policing, issued a Proposed Policy Interpretation and solicited public comment. 43 Fed. Reg. 58,070, 58,071 (Deс. 11, 1978). HEW had received ninety-three complaints against at least sixty-two colleges following the expiration of the three-year phase-in period provided for in the regulations, so it designed the Policy Interpretation to “provide a framework within which those complaints [could] be resolved, and to provide institutions of higher education with additional guidance on the requirements of the law relating to intercollegiate athletic рrograms.” Id.
17. According to the Policy Interpretation, HEW will find that an institution has effectively accommodated the interests of its male and female students if it satisfies any one part of a three-part test:
18. (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
19. (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
20. (3) Where members of one sex are underrepresented among intercollegiate athletes, and the institution 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.4
21. 44 Fed.Reg. at 71,418.
22. The Policy Interpretation implicitly recognizes that universities and other recipients of federal funds do not have infinite money supplies. If a university cannot afford to add sports teams in оrder to provide equal athletic opportunity for men and women, it may be forced to subtract in order to equalize. It is anomalous in an allegedly free society to accomplish equality of opportunity by decreasing rather than increasing opportunities, but in the real world of finite resources, this approach may be the only way for an educational institution to comply with Title IX while still maintaining the other niceties of its mission, such as its academic offerings.
ANALYSIS
STANDARD OF REVIEW
23. We review a district court‘s grant of summary judgment de novo, using the same standard under
EQUAL PROTECTION CLAIM
25. The plaintiffs claim that in making and implementing the decision to comply with the requirements of Title IX by eliminating the men‘s wrestling, tennis and soccer programs at Miami, the defendants, acting under color of law, denied the plaintiffs the equal protection of the law. They further argue that this claim is not a collateral attack but a direct attack on the constitutionality of Title IX, the regulations and the Policy Interpretation. We find no merit to this argument. Nothing in any version of the complaint can be construed as a direct challenge to either the law, the regulations or the Policy Interpretation. At oral argument, plaintiffs contended that even if the complaint did not expressly state such a challenge, the briefs before the district court did. Notwithstanding our view that the basis of plaintiffs’ claim must be clearly expressed in the complaint, we have carefully reviewed those briefs — which were not included in the Joint Appendix — and find no such challenge expressed there either.
26. As we understand the plaintiffs’ argument it is, first, that the defendants acted under color of state law in eliminating these men‘s sports, and that these actions were in violation of Title IX and denied the plaintiffs equal protection in violation of the Fourteenth Amendment; and second, even if the defendants’ actions did not violate Title IX — and therefore, they acted pursuant to federal law rather than under color of state law — those actions were in violation of the equal protection component of the Fifth Amendment‘s due process clause.
27. The Seventh Circuit addressed an almost identical argument in an action brought by members of the men‘s swimming program at the University of Illinois alleging violations of Title IX and the Equal Protection Clause for the termination of the men‘s swimming program:
28. Plaintiffs’ final аrgument is that the defendants’ decision to eliminate the men‘s swimming program while retaining the women‘s program denied them equal protection of law as guaranteed by the Fourteenth Amendment. We do not agree. First, the record makes clear that the University considered gender solely to ensure that its actions did not violate federal law. And insofar 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. Milwaukee County Pavers Ass‘n v. Fiedler, 922 F.2d 419, 424 (7th Cir. 1991), certiorari denied, 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 714 (1991).
29. Kelley v. Bd. of Trustees, 35 F.3d 265, 272 (7th Cir. 1994).
30. In the case before us today, it is evident that Miami took the challenged actions in an attempt to comply with the requirements of Title IX, and, as we explain below, Miami was successful in that attempt. Only if Title IX, its regulations or the Policy Interpretation are unconstitutional — an issue not before us in this lawsuit — could we hold thаt Miami‘s compliance with the law and the regulations is unconstitutional.
TITLE IX CLAIM
32. With respect to their Title IX claim, the plaintiffs contend that: (1) the 1979 Policy Interpretation is not entitled to deference; (2) even if the Policy Interpretation is entitled to some deference, it is not a persuasive interpretation of Title IX; and (3) the amended complaint stated a claim of violation of Title IX. We think the plaintiffs are incorrect on each contention.
A. Deference to the 1979 Policy Interpretation
34. Consistent with the precedent of this court and various other courts, we conclude that the Policy Interpretation is entitled to deference. Despite the plaintiffs’ assertions to the contrary, the facts in Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), are distinguishable from the facts at issue here. The Christensen court specifically dealt with an interpretation contained in an opinion letter, “not one arrived at after ... a formal adjudication or notice-and-comment rulemaking.” 529 U.S. at 587. It is clear that the 1979 Policy Interpretation is far more than a mere opinion letter. Before it was published, a formal comment period was held and over 700 comments were received. 44 Fed.Reg. 71,413. HEW staff also visited eight universities to see how the policy would apply in practice. Id. We conclude that the Christensen “respect only” interpretation is not applicable to the Policy Interpretatiоn. Rather, “[b]ecause Congress has not ‘directly spoken to the precise question at issue,’ we must sustain the Secretary‘s approach so long as it is ‘based on a permissible construction of the statute.‘” Auer v. Robbins, 519 U.S. 452, 457, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., et al., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The regulations and their interpretation should be accorded “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844. We find, based upon our review of the regulations, the Policy Interpretation and established law, that neither the regulations nor the Policy Interpretation are unreasonable, arbitrary, capricious, or manifestly contrary to Title IX. See Chalenor v. Univ. of N. Dakota, 291 F.3d 1042, 1045-47 (8th Cir. 2002); Neal v. Bd. of Trustees of the Cal. State Univs., 198 F.3d 763, 769-72 (9th Cir. 1999); Boulahanis v. Bd. of Regents, 198 F.3d 633, 637-38 (7th Cir. 1999); Horner v. Ky. High Sch. Athletic Ass‘n, 43 F.3d 265, 274-75 (6th Cir. 1994); Cohen v. Brown Univ., 101 F.3d 155, 172-73 (1st Cir. 1996); and Kelley, 35 F.3d at 270-71. Accordingly, we defer to the 1979 Policy Interpretation.
B. Stating a Claim Under Title IX
35. The plaintiffs contend that because Miami considered gender when it made the decision to eliminate the men‘s athletic programs, the elimination of those programs was discriminatory and violated Title IX. We conclude, however, that the plaintiffs have failed to state a claim under Title IX.
36. There is no constitutional right to participate in intercollegiate athletics. Burrows v. Ohio High Sch. Athletic Ass‘n, 891 F.2d 122, 125 (6th Cir. 1989). Title IX prohibits gender inequity in connection with, among other things, the opportunity to participate in athletics. The statute focuses on opportunities for the underrepresented gender, and does not bestow rights on the historically overrepresented gender, Cohen, 101 F.3d at 174; Neal, 198 F.3d at 770; and it is well-established that classification by gender is not a per se violation of Title IX,
CLASS CERTIFICATION
37. The plaintiffs claim that the district court‘s decision to hold their motion for class certification in abeyance until the parties had concluded discovery and the court had ruled on the defendants’ motion for summary judgment violated the requirement of
38. We have consistently held that a district court is not required to rule on a motion for class certification before ruling on the merits of the case. Sprague, 133 F.3d at 397; Jibson v. Mich. Educ. Ass‘n-NEA, 30 F.3d 723, 734 (6th Cir. 1994). Accordingly, we hоld that the district court did not abuse its discretion in ruling first on the merits of the plaintiffs’ claims before addressing the plaintiffs’ motion for class certification.
CONCLUSION
39. For the foregoing reasons, we AFFIRM in its entirety the judgment of the district court.