A federal judge in Washington, D.C., has dismissed the lawsuit brought by the National Wrestling Coaches Association (NWCA) and other athletics organizations against the U.S. Department of Education challenging the regulations governing Title IX.
The decision to dismiss was announced June 11 in a 119-page ruling by U.S. District Judge Emmet G. Sullivan. The plaintiffs plan to appeal, and they have 60 days to do so.
"The fight is far from over," said Mike Moyer, executive director of the NWCA. "We're committed to seeing this through and abolishing the quota system once and for all."
Supporters of the Title IX regulations were elated by the decision, particularly the judge's ruling that the plaintiffs had failed to show a causal link between Title IX and the dropping of men's athletics programs.
"It totally puts to rest the argument that men's teams are being hurt by Title IX," said Marcia Greenberger, co-president of the National Women's Law Center, an organization that filed a friend of the court brief supporting the Department of Education. "The court firmly concluded that the wrestling teams surely could not show any real connection between the dropping of teams by some schools and the Title IX policies."
The NWCA had alleged that the regulations the U.S. Department of Education (DOE) uses to implement Title IX, the 1972 federal statute prohibiting sex discrimination in education, had been improperly adopted and implemented. It specifically targeted the DOE's 1979 policy interpretation and its 1996 clarification.
The suit also contended that the regulations -- including the three-part test and specifically the proportionality prong -- had led many universities to cut men's sports rather than add women's sports to seek gender equity.
Judge Sullivan ruled that the plaintiffs did not have legal standing to sue the DOE, in part because the NWCA had not specified precisely how its members had been injured by enforcement of the 1979 policy interpretation and the 1996 clarification (the regulations at issue in the case).
The court also ruled that the NWCA had not proven proportionality was the reason men's sports were dropped. Further, the court noted that the plaintiffs had not proven that their complaint would be fixed if they won the case, in part because educational institutions may drop sports for many different reasons and there was no guarantee institutions would add men's sports if the rule were changed.
"While an educational institution's exercise of discretion may indeed be limited to selection among three options for demonstrating equal athletics opportunity, plaintiffs have not established causation or redressability under the case law cited with respect to any one of the three prongs of the three-part test," Sullivan wrote.
Because the judge ruled that the plaintiffs did not have standing to bring the case, the merits of the case were not addressed, though the court did seem persuaded that challenges to Title IX would not be taken lightly.
"Before entertaining claims that contemplate taking the dramatic step of striking down a landmark civil-rights statute's regulatory enforcement scheme, the court must take pains to ensure that the parties and allegations before it are such that the issues will be fully and fairly litigated," Sullivan wrote. "This is particularly true where the challenged enforcement scheme is one that has benefited from more than 20 years of study, critical examination and judicial review, and for which a demonstrated need continues to be recognized by the nation's legislators. In the court's view, plaintiffs have failed to meet their burden of persuasion on the question of whether they are the proper parties to be asserting the claims they raise against the defendant."
Lawrence Joseph, an attorney representing the plaintiffs, has indicated they will appeal. In a letter to the College Sports Council (CSC) and posted on the Web site "InterMat," CSC Chair Eric Pearson confirmed that decision.
"We filed this case in the District of Columbia circuit specifically because as the seat of federal regulatory law, it handles more rule challenges under the Administrative Procedure Act (APA) than any of the other 12 federal courts of appeal," Pearson said online. "Given the many APA issues and precedents not considered in other Title IX cases, we are confident that we will prevail on appeal. The judge's ruling did not address the merits of our case against the three-part test and only dealt with our standing to sue the DOE directly. We will take efforts to move the appeal along quickly, as we continue to lose programs at an alarming rate."
Suit pivotal in Title IX debate
Though the lawsuit has been dismissed on largely procedural grounds, its impact will be felt for some time no matter what happens on appeal.
When the NWCA filed the lawsuit in January 2002, it renewed debate on Title IX and the regulations surrounding it, heightening expectations that President Bush supported changes to Title IX. (As a presidential candidate, Bush had indicated support for the statute itself but had also spoken of his opposition to "strict proportionality that pits one group against another.")
Then last June, amid rumors that the Bush Administration was set to change Title IX, the lawsuit took center stage again. The U.S. Department of Justice, acting on behalf of the DOE, filed a motion to dismiss the suit.
The Department of Justice did not address the underlying merits of the lawsuit, instead making three procedural arguments: that the plaintiffs lacked standing to file their lawsuit because the loss of athletics programs is not redressable by the court; that individual institutions, not the DOE, are the proper targets of the lawsuit; and that the statute of limitations has expired with respect to the plaintiffs' challenges to the 1979 policy interpretation.
Only days after filing the motion to dismiss in June 2002, the DOE announced the creation of the Secretary of Education's Commission on Opportunity in Athletics, which met last fall and heard many of the same arguments made by the NWCA and other organizations. In late February 2003, the commission delivered its recommendations to DOE Secretary Rod Paige, who continues to consider those that were recommended by "consensus" of the group, though there is debate on that as well.
Susan Aspey, spokeswoman for the DOE, told the Associated Press that the court's ruling in no way deals with the work of the commission, but the National Women's Law Center's Greenberger is skeptical. She remains concerned that the Bush Administration still will seek to weaken Title IX.
"We have a judge undermining the arguments that were put forward to establish the commission to begin with, and he certainly is undermining any rationale for changing the (Title IX) policies," she said.
Aspey also told the Associated Press that Paige has not yet decided how to move forward on any of the commission's recommendations.
Though still concerned about the future of Title IX, Greenberger hopes the court decision will persuade the Bush Administration that changing Title IX is neither wise nor necessary.
"We call on the Bush Administration to abandon its ill-advised attempts to roll back Title IX athletics policies," Greenberger said. "As the court made abundantly clear, these policies are still urgently needed to redress discrimination against female athletes and are not the cause of harm to men's teams. This decision debunks the myths, accepted by the majority of the commissioners (who served on the DOE's Commission on Opportunity in Athletics), that Title IX policies need to be changed."