Court Dismisses Case Challenging Title IX's Application to High School

Yesterday, a federal district court dismissed a case filed by the American Sports Council in which it attempts to appeal a 2007 decision of the Department of Education (which we blogged about here) rejecting the Council's petition that the agency repeal or amend its interpretation of Title IX's three-part test to exclude its application to high schools. The three-part test requires that school satisfy Title IX's requirement for equity in the distribution of athletic opportunities by either demonstrating that the distribution is proportionate to enrollment of students of each sex, or that the school has a history and continuing practice of expanding opportunities for the underrepresented sex, or that interests and abilities among the underrepresented sex are being fully and effectively accommodated.

The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.

To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.

Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)