The College Sports Council, a group advocating for Title IX reform, and the Pacific Legal Foundation, a conservative legal group, are challenging the Title IX complaints filed by the National Women's Law Center last fall in 12 of the nation's schools districts.
PLF sent letters to the district offices of OCR suggesting that the 3-prong test does not apply to high school athletics. And CSC sent letters to the actual districts, targeted by NWLC for their especially disproportionate distribution of athletic opportunities, suggesting that the districts fight complaints.
Both organizations are claiming that high schools do not have to meet the 3-prong test and that application of the test to high school athletics might be unconstitutional--specifically that it violates the Equal Protection Clause.
Responses from the Department of Education and NWLC mention that this issue is moot; that PLF already raised it--two years ago--and that some courts have already applied it to high schools.
It will be interesting to see if the hand being offered by CSC to the affected districts will be taken by any of them in a potential fight with the Department of Education.