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June 11, 2003


The opinion of the court was delivered by: Emmet Sullivan, District Judge


I. Introduction

Plaintiffs, National Wrestling Coaches Association ("NWCA"), Committee to Save Bucknell Wrestling ("CSBW"), Marquette Wrestling Club ("MWC"), Yale Wrestling Association ("YWA"), and College Sports Council ("CSC") are associations representing male intercollegiate and scholastic athletes, coaches, and alumni. They commenced this action for declaratory judgment and injunctive relief to enjoin the U.S. Department of Education ("DoE") from enforcing Title IX, which prohibits sex discrimination in education, in a manner they contend results in discrimination against male athletes. Specifically, plaintiffs maintain that the Department's current enforcement policies lead educational institutions to cut men's sports teams, artificially limit the number of participants on men's teams, and otherwise impermissibly discriminate against men based on sex in the provision of athletic opportunities, thereby denying male athletes and other interested parties the equal protection of laws.

Accordingly, plaintiffs, on behalf of their members, challenge the agency's "1979 Policy Interpretation" and "1996 Clarification," pursuant to which Title IX and its regulations are currently enforced. Plaintiffs contend that both of these policy statements violate the Equal Protection component of the Due Process Clause of the Fifth Amendment, and exceed the agency's regulatory authority under the statute by requiring the very discrimination the statute prohibits. Moreover, plaintiffs allege that the 1996 "Clarification" effectively amended the substantive provisions of the 1975 Title IX regulations under the guise of interpretation and clarification without formal rulemaking, thus violating the Administrative Procedure Act (APA). Plaintiffs also maintain that procedural infirmities in promulgation of both the 1979 Policy Interpretation and the 1996 Clarification render both documents null and void.

Plaintiffs seek declaratory and injunctive relief vacating the 1996 Clarification and the 1979 Policy Interpretation, compelling the Department of Education to conduct formal notice and comment rulemaking "consistent with Title IX, the U.S. Constitution, and this Court's declaratory relief in this action," and staying all "disparate-impact components" of Title IX regulations until a new final rule is promulgated.

Currently pending before this Court are defendant's motion to dismiss and plaintiffs' opposed motion for leave to file a second amended complaint.

Upon careful consideration of the motions, the responses and replies thereto, the oral arguments of counsel, the entire record herein, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby

ORDERED that the plaintiffs' motion for leave to file a second amended complaint is hereby DENIED; and it is

FURTHER ORDERED that the defendant's motion to dismiss is hereby GRANTED.

A. Parties

NWCA is a not-for-profit corporation representing the interests of collegiate and scholastic wrestling coaches. First Am. Compl. ¶ 4.

CSBW is an unincorporated not-for-profit association of student-athletes attending Bucknell University in Lewisburg, PA, as well as Bucknell University alumni, formed to advocate for maintenance or reinstatement of Bucknell University's intercollegiate wrestling program. Id. ¶ 5. Its members include students who competed on the university's 2001-2002 men's wrestling team. Id.

MWC is an unincorporated not-for-profit association of student-athletes attending Marquette University in Milwaukee, WI, along with alumni of the University, formed to raise funds to support Marquette's men's wrestling program. Id. ¶ 6.

YWA is an unincorporated not-for-profit association, formed to provide financial support to the men's wrestling program at Yale University in New Haven, CT, and to seek reinstatement of men's wrestling as an intercollegiate varsity sport at the University. Id. ¶ 7.

CSC is a not-for-profit District of Columbia corporation which serves as an umbrella organization for groups representing the interests of collegiate coaches and athletes, and includes among its members the national collegiate coaches' associations for men's and women's swimming, track and field, wrestling, and men's gymnastics. Id. ¶ 8.

Defendant DoE, is the federal agency responsible for implementation and enforcement of Title IX, 20 U.S.C. § 1681-1688, the federal statute prohibiting discrimination based on sex in educational programs and activities receiving federal financial assistance.

The National Women's Law Center ("NWLC"), American Volleyball Coaches Association, International Women's Lacrosse Coaches Association, National Fastpitch Softball Coaches Association, Women's Basketball Coaches Association, American Association of University Women, and Women's Sports Foundation, moved for and were granted permission to participate as amici curiae in this case. All are organizations asserting an interest in the achievement of equal opportunities for women and girls in athletics, and filed briefs in support of defendant's motion to dismiss.

Also participating as amicus curiae is the Independent Women's Forum ("IWF"), a nonprofit organization advocating for "individual liberty and responsibility, self-governance, the superiority of the market economy, and . . . equal opportunity for all." IWF joins plaintiffs in opposing defendant's motion to dismiss, principally advancing arguments on the merits of plaintiffs' claims.

B. Procedural History

DoE filed a motion to dismiss plaintiffs' claims for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), on the grounds that plaintiffs lack standing to bring their claims under Article III of the U.S. Constitution, and that their action is barred on sovereign immunity and statute of limitations grounds.

Plaintiffs cross-moved for summary judgment in their response to the defendant's motion to dismiss. However, by Order dated July 25, 2002, proceedings on plaintiffs' motion for summary judgment were stayed until the question of subject matter jurisdiction was resolved.

The Court heard oral argument on defendant's motion to dismiss on October 15, 2002. Presumably in an effort to correct the jurisdictional defects alleged by defendant, plaintiffs moved for leave to file a Second Amended Complaint. On January 16, 2003, plaintiffs filed a "Notice of Petition," advising the Court that plaintiff CSC had petitioned the Secretary of Education, pursuant to 5 U.S.C. § 553(e) of the APA,*fn1 seeking repeal of the 1979 Policy Interpretation and 1996 Clarification.

II. Statutory and Regulatory Framework

In light of the complexity of the regulatory scheme through which Title IX has been implemented and enforced over the past 30 years, as well as the significance of the statute's substantive and procedural history to plaintiffs' claims, the Court will first engage in a comprehensive review of the Title IX statutory and regulatory framework before directly addressing plaintiffs' claims.

A. Title IX

Title IX was enacted as part of the Education Amendments of 1972, following extensive hearings on discrimination in education, during which over 1200 pages of testimony were gathered, documenting "massive, persistent patterns of discrimination against women" in colleges and universities. Pub. L. No. 92-318, §§ 901-905, 86 Stat. 373-75 (1972); 118 Cong. Rec. 5804 (daily ed. Feb. 28, 1972) (statement of Sen. Bayh). The objectives of the statute are two-fold: "to avoid the use of federal resources to support discriminatory practices," and "to provide individual citizens effective protection against those practices." Cannon v. Univ. of Chicago, 441 U.S. 677, 704, 99 S.Ct. 1946, 1961 (1979). Section 901 of Title IX, which is patterned after Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits discrimination based on sex in federally funded educational programs and activities. Pub. L. No. 92-318, § 901, codified at 20 U.S.C. § 1681 (2003); 118 Cong. Rec. 5802, 5803, 5807 (daily edition Feb. 28, 1972) (statement of Sen. Bayh); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 514, 529, 102 S.Ct. 1912 (1982). It provides, in relevant part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . .

20 U.S.C. § 1681. The statute expressly precludes a finding of discrimination based solely on statistical evidence of gender disparities in athletic programs:

Nothing contained in . . . this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.

Id.; Cohen v. Brown Univ., 991 F.2d 888, 894-95 (1st Cir. 1993) [hereinafter "Cohen I"]. This statutory language does not, however, preclude any consideration of statistical disparities in the adjudication of a Title IX claim, as evidenced by the proviso immediately following:

Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such imbalance exists with respect to participation in, or receipt of benefits of, any such program or activity by members of one sex.

20 U.S.C. § 1681.

Federal agencies, such as DoE, providing financial assistance to educational programs or activities are authorized and directed to effectuate the provisions of Section 1681 by

issuing rules, regulations, or orders of general applicability which shall be consistent with the achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President.

20 U.S.C. § 1682 (2003).

The "ultimate sanction" for non-compliance with the statute is termination of federal funding or denial of future federal grants.*fn2 Id., North Haven Bd. of Educ. v. Bell, 456 U.S. at 514. The statute expressly enables "any person aggrieved" by an agency's termination of funding based on a finding of noncompliance with the statute to seek judicial review of such agency action. 20 U.S.C. § 1683 (2003). Further, "private lawsuits have played an important role in Title IX enforcement." Gender Equity: Men's and Women's Participation in Higher Education, General Accounting Office, GAO 01-128 at 5 (December 2000) [hereinafter "GAO Report"]; Cannon v. Univ. of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946 (1979) (recognizing implied private right of action to enforce Title IX).

B. 1975 Regulations

Two years after Title IX was passed, Congress enacted the Education Amendments of 1974, directing the Secretary of Health, Education, and Welfare ("HEW"), DoE's predecessor agency, to promulgate regulations implementing Title IX, which were to "include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports." Pub. L. No. 93-380, § 844, 88 Stat. 484, 612 (1974).

In 1975 HEW published final Title IX regulations ("1975 Regulations"), which remain in effect. 40 Fed. Reg. 24,128 (June 4, 1975); codified at 45 C.F.R. § 86.1 — 45 C.F.R. § 86.71 (2003). Promulgation of the final regulations followed a four month period during which over 9,700 public comments regarding proposed regulations published in the Federal Register on June 20, 1974 were accepted and considered. Id. The regulatory provision specifically addressing federally funded athletic programs provides, in relevant part:

A recipient . . . shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available, the Director will consider, among other factors:
(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes . . .

45 C.F.R. § 86.41(c). This section lists nine additional factors an agency may consider when determining whether a funded entity is complying with the regulations by making equal opportunities available in athletics. Id. These factors include provision of equipment and supplies, as well as physical, coaching, medical, training, housing and dining facilities and services, scheduling of games and practice times, travel and per diem allowances, opportunity to receive academic tutoring, and publicity. Id. The regulations also provided for a three year "adjustment period" from the date of promulgation to allow affected educational institutions to come into compliance. 45 C.F.R. § 86.41(d). The 1975 HEW Regulations were approved by President Gerald Ford on May 27, 1975. 40 Fed. Reg. 24,137 (June 4, 1975)

C. 1979 Policy Interpretation

Several months after the expiration of the three year "adjustment period," HEW issued a proposed policy interpretation to, inter alia, further explain the concept of "equal athletic opportunity" embodied in the 1975 Regulations and "provide further guidance on what constitutes compliance with the law." 43 Fed. Reg. 58,070 (Dec. 11, 1978); Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413 (December 11, 1979) [hereinafter "1979 Policy Interpretation"]. After accepting over 700 comments from the public and visiting eight universities to determine how the proposed policy and suggested alternatives would apply in actual practice, the agency promulgated a final policy, dubbed the "1979 Policy Interpretation." 44 Fed. Reg. 71,413.

The proposed Policy Interpretation noted that HEW had, at that time, "received 93 complaints alleging that more than 62 institutions of higher education were not providing equal athletic opportunities for women." 43 Fed. Reg. at 58,071. The purpose of the final 1979 Policy Interpretation was described as follows:

this Policy Interpretation explains the regulation so as to provide a framework within which the complaints can be resolved, and to provide institutions of higher education with additional guidance on the requirements for compliance with Title IX in intercollegiate athletic programs.
The final Policy Interpretation clarifies the meaning of "equal opportunity" in intercollegiate athletics. It explains the factors and standards set out in the law and regulation which the Department will consider in determining whether an institution's intercollegiate athletics program complies with the law and regulations. It also provides guidance to assist institutions in determining whether any disparities which may exist between men's and women's programs are justifiable and nondiscriminatory.

44 Fed. Reg. 71,413, 71,414.*fn3

The 1979 Policy Interpretation emphasizes that, although it "does not contain a separate section on institutions' future responsibilities[,] . . . institutions remain obligated by the Title IX regulation to accommodate effectively the interests and abilities of male and female students with regard to the selection of sports and levels of competition available." 44 Fed. Reg. 71,414. This language has been interpreted as indicating that the 1979 Policy Interpretation was designed to assist institutions in "self-policing" their compliance with Title IX. See, e.g. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 612 (6th Cir. 2002); Kelley v. Bd. of Trustees, Univ. of Ill., 35 F.3d 265, 268 (7th Cir. 1994). Significantly, the 1979 Policy Interpretation concludes that, "[i]n most cases, this will entail development of athletic programs that substantially expand opportunities for women to participate and compete at all levels." Id. (emphasis added).

Finally, the 1979 Policy Interpretation is "designed specifically for intercollegiate athletics," but emphasizes that "its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulation." 44 Fed. Reg. 71,413.

The 1979 Policy Interpretation states that, with respect to the first of the ten factors identified in the 1975 Regulations as determinative of whether an institution is providing "equal opportunity" in its athletic program, i.e. "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes," 45 C.F.R. § 86.41(c)(1), recodified at 34 C.F.R. § 106.41(c)(1) (2003), the agency will conduct an "Overall Determination of Compliance," during which it will ascertain

(a) whether an institution's policies are discriminatory in language or effect;
(b) whether the institution's program as a whole includes substantial and unjustified disparities in the opportunities or treatment afforded to male and female athletes; and
(c) whether segments of the institution's program include disparities in the treatment and opportunities that are substantial enough to deny equality of athletic opportunity.

44 Fed. Reg. 71,418. Moreover, the agency will assess compliance with the "interests and abilities" factor of the ten-factor equal opportunity test by examining:

a. The determination of athletic interests and abilities of students;

b. The selection of sports offered; and

c. The levels of competition available including the opportunity for team competition.

44 Fed. Reg. 74,417.

In order to assess students' athletic interests and abilities, the 1979 Policy Interpretation permits institutions to use "any non-discriminatory method," provided that:

(a) the process takes into account the nationally increasing levels of women's interests and abilities;
(b) the methods do not disadvantage the members of the underrepresented gender;
(c) the methods of determining ability consider team performance records; and
(d) the methods are responsive to the expressed interests of the students of the underrepresented gender capable of intercollegiate competition.

44 Fed. Reg. 71,417.

The examination of the third criterion, "levels of competition available, including the opportunity for team competition," under the 1979 Interpretation is informed by the agency's view that:

In effectively accommodating the interests and abilities of male and female athletes, institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities.

44 Fed. Reg. 74,418. According to the 1979 Policy Interpretation, compliance with this directive is achieved by demonstrating one of the following, under what has become known as the "Three Part Test":

(1) . . . intercollegiate level participation opportunities for male and female athletes are provided in numbers substantially proportionate to their respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes . . . the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above, . . . it can be demonstrated that the interests and abilities of the members of that sex ...

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