WSF Responds to American Sports Council v. Department of Education decision

A federal district court recently dismissed the lawsuit filed in July 2011 that was designed to weaken Title IX and to prevent it from applying to high school athletics. As we told you back in July, this case was not a cause for alarm. Almost the exact same arguments have been heard time and again from the same group, all without success. The law is clear, and the three-part test at issue has been in force since 1979. It has been applied uniformly to K-12 and colleges and universities across Democratic and Republican administrations.

The court concluded that the American Sports Council (ASC) has no standing to challenge the Department of Education’s application of the three-part test to high schools, because they did not have a sufficient connection to the case being litigated. In other words, Title IX didn’t cause their harm, when nothing in the statute or the regulations require schools to reduce athletic opportunities for boys.

Even if the plaintiffs had won the lawsuit and Title IX had been weakened, schools are free to structure their athletic department however they choose – so long as it treats boys and girls, men and women fairly. There was no evidence that the schools would add men’s sports.

The Women's Sports Foundation is dedicated to advancing the lives of girls and women through sports and physical activity, and pleased that its efforts have resulted in all-time time high sports participation for males and females for both high school and NCAA sports (with a substantially larger percentage going to males.) But our work isn’t finished. Even after 40 years of Title IX, females have 1.3 million fewer high school and over 55,000 fewer college sports participation opportunities than males and receive almost $176 million less in athletic scholarship funds each year.

The ASC was attempting to challenge the very-flexible participation test of Title IX. The three-part test (also known as the three-prong test) has been consistently upheld in all nine federal circuits that it has been litigated. Rather than giving “gender quotas” to schools, as the ASC claims, the three- part test actually gives schools three lenient ways to comply with participation under Title IX. The three-part test includes:

1 – Proportionality (i.e. schools may choose to comply by having the makeup of their student-athletes proportional in sex to that of their student-body) OR;
2 – History and Continuing Practice (i.e. schools may choose to comply by showing that they are continuing to add athletic opportunities for their female student athletes) OR;
3 – Effectively Accommodating Interests and Abilities (i.e. schools may choose to comply by showing that they are fully and effectively meeting the interests of their female students)

Though the ASC claims that the dismissal does not address the merits of its claims, gender equity advocates would argue otherwise.  With this recent victory, perhaps gender equity advocates should begin celebrating the 40th anniversary of Title IX a few months early.