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Group Sues Ed. Department Over Title IX's 3-Part Test for High Schools

The now-renamed American Sports Council (formerly the College Sports Council) filed a lawsuit Requires Adobe Acrobat Reader today against the U.S. Department of Education over the use of Title IX's three-part compliance test in high schools, arguing that this type of enforcement violates the equal protection clause of the Constitution.

It's worth noting that lawsuits with similar arguments, such as the Equity in Athletics Inc. v. Department of EducationRequires Adobe Acrobat Reader case decided by an appeals court in March, haven't yet found success in the legal system. [UPDATE (2:30 p.m.): Joshua Thompson, an attorney for the Calif.-based Pacific Legal Foundation, said on a conference call today that "the method and the way that {the ASC is} challenging the three-part test has never been challenged in court."]

Title IX, passed in 1972, requires any school receiving federal financial aid to allow both boys and girls to participate in any educational program or activity. If schools fall out of compliance with the law, they could lose federal funding.

In order to comply with Title IX, schools must satisfy one of three participation requirements:

• Ensuring that female athletic participation is in proportion to total female enrollment;

• Demonstrating a history of expanding athletic opportunities for females; or

• Proving that they are meeting the athletic interests and abilities of their female students.

The ASC believes that Title IX's three-part test has forced districts to eliminate certain men's sports in order to remain in compliance with the law. Back in February, the then-CSC urged high schools to ignore Title IX's three-part compliance test, predicting that the rule could sideline upwards of 1.3 million male athletes.

In the lawsuit, filed today in federal district court in Washington, D.C., the ASC claims, "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."

The basis of the ASC's claims can be seen in a letter from the Pacific Legal Foundation, a conservative think tank, that was sent to the Dept. of Ed.'s office for civil rights in February. Thompson, a PLF attorney, said earlier this year 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's lawsuit maintains that all further interpretations of Title IX specifically say that they were designed for intercollegiate athletics.

Technically, they may be right. The main policy interpretation they reference, issued in 1979 by what was then the Department of Health, Education, and Welfare, does specifically say that it's designed for intercollegiate athletics. That said, the next two sentences read, "However, its 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."

To date, these two sentences have provided the backbone for federal courts upholding the constitutionality of applying Title IX's three-part test to high schools.

In June 2007, the then-CSC petitioned the Dept. of Ed. to clarify the rules regarding applying Title IX to high school athletics, particularly in regard to the three-part test. The Ed. Dept. denied Requires Adobe Acrobat Reader the council's petition on March 27, 2008, and the ASC is now suing to overturn that decision, according to the suit filed today.

In the ED's 2008 letter to the Pacific Legal Foundation, then-Secretary of Education Margaret Spellings wrote, "The three­-part test neither violates equal protection nor creates a gender-conscious affirmative action or quota system. The three-part test provides three separate ways to measure a school's compliance with one aspect of the Title IX regulations. Federal courts have agreed that the three-part test is not a quota, ... and every federal court that has considered an equal protection challenge to the three-part test has upheld its constitutionality."

Not surprisingly, the Women's Sports Foundation has some rather strong feelings toward the ASC's attempts to free high schools from Title IX's compliance test. (The foundation also has a position statementRequires Adobe Acrobat Reader available online specifically addressing the concerns that Title IX enforcement could lead to a reduction in male sports.)

"Far from imposing quotas, the three-part test is merely a measurement, a benchmark for determining whether schools distribute sex-segregated athletic participation opportunities fairly," said Nancy Hogshead-Makar, senior director of advocacy at the WSF, in a recent email interview. "Courts have repeatedly recognized that the three-part test in no way creates quotas."

"The three-part test has been uniformly upheld as constitutional by every federal court to have considered it, including high school cases," she continued. "In short, the CSC is attempting to inject uncertainty into an area where there is none."

Hogshead-Makar cited comments made by Russlynn Ali, assistant secretary for civil rights in the Department of Education, to the New York Times in February: "The law is really clear, and has been since 1979, and it has been applied uniformly to K-12 and colleges and universities across Democratic and Republican administrations."

Check back later today, and I'll try to have a comment from the ED.

As part of the rollout of its lawsuit, the American Sports Council also announced its new name today.

"Title IX enforcement's next battlefield will be American high schools, and we need to change our name to reflect a broader mandate," said Eric Pearson, chairman of the ASC, in a press releaseRequires Adobe Acrobat Reader.

Back when it was the CSC, the group described itself as "a national coalition of coaches, athletes, parents, and fans who are devoted to preserving and promoting the student-athlete experience." Its press release notes that the now-ASC/formerly-CSC has been leading the fight to reform Title IX enforcement for nearly a decade.

UPDATE (2:30 p.m.): Just got off the ASC's press conference call about 45 minutes ago. Joining us on the call were Pearson, the ASC chairman, Thompson, the attorney from the PLF, and Dwight Johnson, a Colorado parent of three who has been trying to get boys' high school volleyball recognized as an official sport.

Both Pearson and Thompson said that while similar lawsuits about Title IX have been filed previously, with little judicial success, theirs is the first to directly target the use of three-part test in high schools (to their knowledge). Thompson said, "We're suing to protect the integrity and honest implementation of Title IX, which was never meant to create sex-based quotas."

Pearson also noted that their case stems from the 1979 policy interpretation that I referenced above. He mentioned that the interpretation was designed specifically for college athletics, but the problem stems from the language which states that the same policy interpretation "may be used" in interscholastic, club, and intramural sports programs. Pearson stressed that "may be used" doesn't necessarily mean that schools must follow these rules.

Johnson spoke about his specific experiences in Colorado, where he's been trying to get boys' volleyball recognized as a sanctioned high school sport. According to Johnson, the Colorado High School Activities Association has cited Title IX as a deterrent to having boys' volleyball recognized.

Johnson also said that while 30 Colorado high schools have ice hockey recognized as a sanctioned sport, roughly 20 other schools only have ice hockey available at a club level, due to districts trying to remain compliant with Title IX.

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