This was, I regret, off my radar when it happened, but a year ago, the College Sports Council petitioned the Department of Education's Office for Civil Rights to "clarify" Title IX's application to by stating that the three-part test for measuring equity in participation does not apply to high school athletics. But earlier this year, OCR denied this petition, affirming the applicability of the three-part test to high schools.
Rather than make the three-part test mandatory outside the context of intercollegiate athletics, OCR stated that the 1979 Policy Interpretation "may be used as guidance by the administrators of such programs where appropriate." Since that time, courts have uniformly referenced the three-part test as an appropriate measure of participation equity in high school athletics. Thus, OCR concluded in its denial of CSC's petition, "In light of this existing guidance, which the federal courts have applied authoritatively and unambiguously to interscholastic athletics, further clarification on this matter is not necessary."
We give Spellings and the current administration a lot of grief over the 2005 Clarification (allowing universities to set participation levels for women based on responses to an email survey), so even though this news is late, I thought it was important to acknowledge when the Office for Civil Rights does in fact live up to its name.
Source: Letter from Margaret Spellings to Steven Giseler, Pacific Legal Foundation, March 27, 2008 (.pdf).