                           UNPUBLISHED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.

----------------------------------------

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Affirmed by unpublished opinion.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,


                                      9
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
