Last year, the anti-Title IX College Sports Council sued the Department of Education in order to challenge the constitutionality of the Department's "three part test" (which we've described here) as well the test's consistency with Title IX. The CSC also petitioned the Department to issue a new rule that would repeal the three-part test, and are appealing the Department's denial of that petition in the federal courts.
The lower federal court in D.C. rejected CSC's efforts on both fronts, and the CSC appealed to the U.S. Court of Appeals for the D.C. Circuit. On Tuesday, the D.C. Circuit affirmed in part and remanded in part the lower court's decision.
As for the direct challenge to the three-part test, the court held it had already affirmed the regulation's constitutionality and consistency with Title IX in its decision in National Westling Coaches' Association v. Department of Education. That decision not only has precedential, "stare decisis" effect on future similar cases like CSC's, the doctrine of res judicata also barred the members of the NCWA from joining the CSC's lawsuit and raising the same argument again, as five of the seven CSC litigants apparently did.
But as for the appeal of the Department's decision to deny the petition for rulemaking, the D.C. Circuit reversed the lower court's decision that the CSC had no standing and remanded the case back down to the lower court. There a federal judge will have to decide whether the Department was within its rights to decide not to initiate a rulemaking at CSC's request. But even with the remand, the CSC is not likely to prevail. As the D.C. Circuit noted, the district's court's review is “extremely limited” and “highly deferential,” and that "an agency’s decision not to initiate rulemaking will be overturned 'only in the rarest and most compelling of circumstances.'" An agency's decision to reject a petition for a rulemaking that would repeal a policy that has been relied on for 27 years and which has been repeatedly upheld by federal courts is not likely to count as rare and compelling.