Author: Joshua Thompson
The New York Times published this story on PLF's response to the complaints filed by the National Women's Law Center yesterday. Most importantly, I found the quote from Russlyn Ali very interesting. She says, "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." I suspect Ms. Ali was speaking out of turn, or doesn't fully understand the questions raised by PLF's letters. If, however, Ms. Ali was speaking the true position of the Department of Education, well, wow!
What was the "existing guidance" the Department was referring to? The Department first cites to a line of cases that hold that the Three-Part Test is "entitled to substantial deference." Of course, PLF does not dispute that point, and citing to those cases is merely begging the question: the point to be proved is whether the Three-Part Test applies to interscholastic athletics. If the 1979 Policy Interpretation doesn't apply to high schools, to what exactly is the Department deferring?
Next, the Department cites a line of cases that hold that the principles enunciated with the 1979 Policy Interpretation apply to interscholastic athletics. This language is explicitly in the 1979 Policy Interpretation, as PLF readily concedes (and even cites in its letter). Again, however, the Department is question begging, the vague language from the Policy Interpretation notes how the general principles often apply to scholastic sports, and may be used by administrators to demonstrate Title IX compliance. See footnote 4 of PLF's letter. **
In their response to PLF's request for clarification, the Department then notes that, "the Sixth Circuit applied the Three-Part Test specifically to address a claim against a state high school athletic association," and cites to Horner v. Kentucky High Sch. Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994). But, as I am sure the Department is aware, the Horner court never held that proportionality is sufficient to make out a Title IX violation at high schools. If not obvious from the language of that decision, the point becomes abundantly clear when the Horner case came up on appeal a second time. In Horner ex rel. Horner v. Kentucky High Sch. Ath. Ass'n, 206 F.3d 685 (6th Cir. 2000), the Sixth Circuit held, "This reasoning is flawed because it reads Title IX as requiring perfect parity. However, as just discussed, all the statute and implementing regulations require is equality of athletic opportunity." Indeed, the Sixth Circuit went on to specifically cite to 20 U.S.C. section 1681(b) (cited in PLF's letter as well), noting that "[t]he statute itself does not require gender balance."
In response to PLF's petition for clarification, the Department therefore only referred to this vague "guidance" of "the federal courts" applying the 1979 Policy Interpretation to scholastic sports. Though the Department contended that the language from the courts was "authoritative" and "unambiguous," the language is only authoritative and unambiguous on points wholly irrelevant to the question presented: whether demonstrating a lack proportionality pursuant to the Three-Part Test is sufficient to make out a case of discrimination at high schools.
This is why Ms. Ali's quote in the Times is so astounding. She is quoted as specifically stating that the Three-Part Test applies to high schools. Not its "general principles," not the "guidance from the courts," but, specifically, the Three-Part Test itself. I suspect the Department will back off of this statement in the future, they enjoy the ambiguity in the law as it stands, and if this is their official position, it would certainly bring lawsuits against the Department. PLF makes clear in its letter that applying the strict requirements of the Three-Part Test to high schools (not the vague general principles), would violate the Equal Protection Clause.
Lastly, the Times piece quotes the National Women's Law Center with respect to PLF's letters: "The argument that [the Three-Part Test] doesn’t apply is old and tired and has been rejected by the courts and by the department." I challenge the NWLC to cite one case that supports that statement. Moreover, while the Department denied PLF's petition for clarification, it certainly hasn't explicitly applied the Three-Part Test to high schools. Just look to the 2010 clarification (the latest Department regulation in point), which repeatedly makes clear that the the Three-Part test is an intercollegiate interpretation.
While PLF remains hopeful that its letter (and subsequent meetings) will help the OCR in rejecting the complaints, these issues may finally have to be settled by the courts.
**[Four quick points with respect to the above language from the Policy Interpretation that is often quoted by the Department, OCR, and sex-quota advocates. First, the language is written for administrators to show compliance, not for demonstrating potential violations. As PLF's letter makes clear, this is entirely in line with the Title IX which affords administrators the flexibility to use imbalance as evidence in a compliance hearing. See 20 U.S.C. section 1681(b). Second, by saying that these regulations "often" apply and "may" be used, necessarily means that the Policy Interpretation doesn't always apply, and sometimes may not be used. Third, that language applies equally to club and intramural sports. The express language states, "club, intramural, and scholastic sports." I doubt whether even the NWLC wants to try to apply the Three-Part Test to those endeavors. Lastly, the entire argument ignores the express language of the Policy Interpretation (even the title of it), which makes clear that it is intended as an intercollegiate policy interpretation.]
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