Court Dismisses Lawsuit on Title IX Application to High Schools

By Bryan Toporek — March 30, 2012 2 min read
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A court this week dismissed the American Sports Council’s (ASC) lawsuit against the U.S. Department of Education over the constitutionality of applying Title IX’s three-part compliance test in high schools, saying the ASC didn’t prove that it represented members who suffered injury from these regulations.

Judge Ellen Segal Huvelle, who sits on the U.S. District Court for the District of Columbia, dismissed the case on March 27 based on standing, without hearing arguments from the ASC.

Title IX, which is celebrating its 40th anniversary in June, prohibits any school that receives federal funding from excluding students from participation in educational activities based on gender. Schools can demonstrate their athletic compliance in one of three ways:

• Ensuring that female athletic participation is in proportion to total female enrollment;

• Demonstrating a history of expanding athletic opportunities for females; or

• Proving that they are meeting the athletic interests and abilities of their female students.

The ASC’s lawsuit boiled down to this fundamental argument: All interpretations of Title IX and any related regulations specifically say they were designed for intercollegiate athletics, not high school sports.

Joshua Thompson of the Pacific Legal Foundation (PLF), which worked with the ASC on this particular case, wrote in a blog post this week, “There is absolutely no evidence that the Three-Part Test was ever intended to be applied to high schools. The Three-Part Test’s enabling statute clearly does not authorize its application to high school.”

The ASC believes that the three-part test effectively amounts to a gender quota, which has led high schools to cut sports-based opportunities for males in order to remain in compliance with Title IX. If schools can’t afford to add enough women’s sports teams to prove their Title IX compliance, the theory goes, they’ll slash men’s teams to achieve the same goal, instead.

“Justice has been denied to high school male athletes who have been and will continue to be harmed by these unreasonable regulations,” said Eric Pearson, chairman of the ASC, in a statement. “Title IX’s Three-Part Test encourages schools to ... deny participation in sports on the basis of gender.”

While the ASC and PLF regroup to figure out their next steps, the National Women’s Law Center fired a few shots their way in a blog post from today, which drew the ASC’s rancor.

You would think that everyone would be in favor of treating our sons and daughters equally, but ASC and similar groups have long argued that the law hurts males by requiring schools to cut their opportunities in order to provide girls and women with opportunities that they don't really want, because they are inherently less interested in playing sports. Fortunately, the federal courts of appeals have unanimously rejected such arguments, which are premised on the very stereotypes that Title IX was enacted to combat.

This particular battle may be over, but the war over the application of Title IX’s three-part test in high schools likely isn’t.

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A version of this news article first appeared in the Schooled in Sports blog.