Better Odds of Preserving Men's Collegiate Sports Teams Do Not Confer Standing to Challenge the Department of Education's Three-Part Proportionality Test
July 29, 2004
Title IX of the Education Amendments of 1972 (Title IX) prohibits sex-based discrimination in federally funded education programs. In 1975, the Department of Labor’s predecessor agency, the Department of Health, Education and Welfare, promulgated regulations prohibiting sex-based discrimination in interscholastic, intercollegiate, club or intramural athletic programs (1975 regulations). The 1975 regulations require educational institutions receiving federal funds to provide “equal athletic opportunity for members of both sexes.” To determine whether an institution complies with this requirement, the Department of Education looks at, among other things, “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.”
In 1979, the Department of Health Education and Welfare issued a policy interpretation (1979 policy interpretation) stating that an institution’s compliance with the “interests and abilities” requirement of the 1975 regulations would be assessed under a three-part proportionality test (Three-Part Test), which considers:
(1) whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
(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 interests and abilities of members of that sex; or
(3) where the 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.
Under the first prong of the Three-Part Test, sometimes referred to as the proportionality test, some schools have opted to drop men’s teams rather than add women’s teams in an effort to comply with Title IX and the 1975 Regulations.
In 1996, the Department of Education issued a clarification (1996 clarification) stating that institutions may meet any one of the prongs of the Three-Part Test to comply with the “interests and abilities” requirement and that the Three-Part Test was only one of many factors the Department looked at to assess whether an institution had complied overall with Title IX and the 1975 regulations. In a letter accompanying the 1996 clarification, the Department took the position that an institution can choose to eliminate or cap teams as a way to comply with the first prong of the Three-Part Test, but was not required to do so.
In National Wrestling Coaches Association v. Department of Education, 366 F.3d 930 (D.C. Cir. 2004), several organizations representing collegiate men’s wrestling coaches and male athletes and alumni filed suit, challenging the Three- Part Test on equal protection grounds. Importantly, the plaintiffs did not challenge either Title IX or the 1975 regulations. Their challenge related only to the 1979 policy interpretation and the 1996 clarification.
In their complaint, the plaintiffs alleged that they were injured by many colleges’ decisions to eliminate or reduce the size of the men’s wrestling programs. In support, they alleged that three universities had recently either eliminated the men’s wrestling team or demoted it to non-varsity status. In particular, they noted a press release announcing Bucknell University’s decision to discontinue its wrestling program, which cited “Title IX’s proportionality requirements” as one of the reasons. Additionally, the plaintiffs alleged that Marquette University’s athletic director made a statement at a dinner party indicating that “Marquette might bring back its wrestling program if the legal requirements changed.” Finally, the plaintiffs alleged after demoting its varsity wrestling team to club status for budgetary reasons, Yale University had declined private funding “because of Title IX.” The plaintiffs sought declaratory and injunctive relief. Specifically, the plaintiffs asked the court to vacate the 1996 clarification and the Three-Part Test and remand the rules to the Department to commence a new notice-and-comment rulemaking process to amend the rules to be consistent with Title IX and the Constitution.
The district court dismissed the plaintiffs’ complaint for lack of standing. The D.C. Circuit affirmed, concluding that the plaintiffs did not allege facts sufficient to reasonably infer that the requested relief would redress the plaintiffs’ alleged injuries. To have standing, a plaintiff must show (1) an injury-in-fact, (2) causation, and (3) redressability. Notably, the plaintiff’s alleged injuries in National Wrestling Coaches were not directly caused by the government’s policy, but by the schools that eliminated or reduced their wrestling programs. Under Supreme Court precedent, a plaintiff does not have standing if it is “purely speculative” whether the plaintiff’s requested change in government policy will result in a corresponding change in a regulated third party’s behavior that directly caused the injuries.
The plaintiffs in National Wrestling Coaches did not allege any specific facts to substantiate their claim that schools would either forego eliminating wrestling programs or would reinstate wrestling programs if the court granted their relief. Instead, the plaintiffs alleged merely that Marquette University “might” reinstate its program and conceded during oral argument that success on the merits would only give them “better odds” of reinstating wrestling programs.
Crucial to the court’s holding was the fact that these educational institutions independently choose whether to eliminate or reduce men’s wrestling programs to comply with Title IX; the Three-Part Test did not require them to do so. Therefore, even if the Three-Part Test were invalidated, schools would still be free to opt to eliminate or reduce male wrestling programs in an effort to comply with the 1975 Regulations and Title IX. In addition, schools may opt to eliminate or reduce men’s wrestling programs for reasons other than Title IX and its accompanying regulations. For example, the court noted that Bucknell University’s press release cited the absence of league sponsorship for wrestling, budgetary concerns and the need to balance the athletic program with other university priorities as other reasons for the decision to eliminate its program.
The court also concluded that the plaintiffs could not demonstrate that the Three-Part Test caused the elimination of the men’s wrestling teams given that, for example, Bucknell University announced the elimination of its team 22 years after the Three-Part Test was adopted. Similarly, the court rejected the plaintiffs’ reliance on a report by the General Accounting Office indicating that 519 men’s collegiate athletic teams had been eliminated between 1981 and 1999, because the same report also indicated that 555 men’s teams had been created in the same time frame. The GAO report’s finding that “gender equity considerations” played a role in schools’ decisions to add or drop teams was “utterly inconclusive” as to whether the Three-Part Test, as opposed to the 1975 regulations or Title IX (which the plaintiffs did not challenge) or other self-imposed, non-legal consideration caused schools to eliminate any men’s athletic teams.
Senior Judge Stephen F. Williams wrote a strong dissent, arguing that the plaintiffs’ general factual allegations were sufficient to show that the Three-Part Test was a “substantial factor” in cuts in men’s collegiate athletic programs. Judge Williams noted that the majority opinion relied on cases involving motions for summary judgment to support the proposition that there must be “formidable evidence” that the federal policy caused the program cuts and suggested that the majority had failed to apply the proper standard for ruling on a motion to dismiss. Judge Williams also rejected the majority opinion’s characterization of the plaintiffs’ likelihood of redressability
as speculative, noting that something that is not certain is not necessarily
speculative. Judge Williams concluded that the plaintiffs had alleged a
“high probability” that men’s teams would be restored or retained, which was
sufficient for purposes of Article III standing.
For more information, e-mail Laura E. Story at
laura.story@hklaw.com or call toll free, 1-888-688-8500.
Related Practices