An advocacy group has filed a lawsuit against the U.S. Department of Education claiming the three-pronged test used to determine Title IX compliance violates the equal protection clause of the Constitution.
In February, the American Sports Council, which was then known as the College Sports Council, urged high schools to ignore the compliance test, predicting that Title IX could sideline as many as 1.3 million male athletes, according to Bryan Toporek of Education Week. That month, a conservative think tank called the Pacific Legal Foundation sent a letter to the DOE's Office for Civil Rights noting that "no federal regulation or interpretation has ever said that high schools must abide by the three-part test and the sex-based quota system it fosters." The ASC lawsuit maintains that all Title IX interpretations have been designed for intercollegiate athletics.
The main Title IX policy interpretation, issued in 1979 by what was then known as the Department of Health, Education and Welfare, states that while designed for intercollegiate athletics, the language's "general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by regulation. Accordingly, the policy interpretation may be used for guidance by the administrators of such programs when appropriate."
Satisfying any of the three prongs (ensuring that female athletic participation is in proportion to female enrollment, demonstrating a history of expanding female athletic participation opportunities and/or providing evidence that the athletic interests and abilities of females are being met) places a federally funded institution in compliance with the 1972 law. But, the plaintiffs argue, this often forces schools to eliminate men's/boys' sports.
"If high schools are required to submit to the same regulatory burdens as have colleges over the past three decades, high school athletes and their teams will face similar discrimination in the form of numerical quotas on sex-specific athletic participation," states the lawsuit, filed today in federal district court in Washington, D.C.
As Toporek reports, similar suits, including the Equity in Athletics Inc. v. Department of Education case decided by an appeals court in March, have not fared well in the courts. "Courts have repeatedly recognized that the three-part test in no way creates quotas," including when applied to cases involving high schools, Nancy Hogshead-Makar, senior director of advocacy at the Women's Sports Foundation, told Education Week in a recent e-mail interview. While Title IX ignorance and indifference persist, particularly among coaches, the law and its application have long been clear, according to Hogshead-Makar, who added that the sports council "is attempting to inject uncertainty into an area where there is none."