BEFORE THE SECRETARY
U.S. DEPARTMENT OF EDUCATION
In the matter of the Petition of the College Sports Council, )
pursuant to 5 U.S.C. § 553(e), to Repeal and Amend
)
Guidance Issued under 34 C.F.R. § 106.41(c)
)
______________________________________________ )
_____________________________________________________________________________
OPPOSITION OF THE NATIONAL WOMEN’S LAW CENTER, AMERICAN
VOLLEYBALL COACHES ASSOCIATION, INTERCOLLEGIATE WOMEN’S
LACROSSE COACHES ASSOCIATION, NATIONAL FASTPITCH COACHES
ASSOCIATION, WOMEN’S BASKETBALL COACHES ASSOCIATION, AMERICAN
ASSOCIATION OF UNIVERSITY WOMEN, AND WOMEN’S SPORTS FOUNDATION
TO THE COLLEGE SPORTS COUNCIL’S PETITION FOR RULEMAKING
_____________________________________________________________________________
Marcia D. Greenberger
Jocelyn F. Samuels
Dina R. Lassow
Neena K. Chaudhry
National Women’s Law Center
11 Dupont Circle, NW, Suite 800
Washington, DC 20036
(202) 588-5180
Dated: March 12, 2003
TABLE OF CONTENTS
STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Three-Part Test is Not a Disparate Impact Discrimination Standard . . . . . . . . . . 2
B. No Additional Guidance on Measuring Interest is Necessary . . . . . . . . . . . . . . . . . . . 6
C. No Clarification is Needed on the Availability of Private Rights of Action . . . . . . . . 6
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
OPPOSITION OF THE NATIONAL WOMEN’S LAW CENTER, AMERICAN
VOLLEYBALL COACHES ASSOCIATION, INTERCOLLEGIATE WOMEN’S
LACROSSE COACHES ASSOCIATION, NATIONAL FASTPITCH COACHES
ASSOCIATION, WOMEN’S BASKETBALL COACHES ASSOCIATION, AMERICAN
ASSOCIATION OF UNIVERSITY WOMEN, AND WOMEN’S SPORTS FOUNDATION
TO THE COLLEGE SPORTS COUNCIL’S PETITION FOR RULEMAKING
STATEMENT OF INTEREST
The organizations listed above (“ Respondents”) are dedicated to the achievement of
equal opportunities for women and girls in athletics. In furtherance of this purpose, each has an
abiding interest in ensuring the proper interpretation and implementation of Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”). Because of their interest,
Respondents submit this Opposition to the College Sports Council’s Petition to Repeal and
Amend Guidance Issued Under 34 C.F.R. § 106.41(c) Concerning Equal Opportunity
(“Petition”).
Descriptions of the individual respondent organizations are set forth in Appendix A
attached hereto.
INTRODUCTION
In its Petition, the College Sports Council (“CSC”) asks the Department of Education
(“USDE”) to repeal the three-part test for determining “whether the selection of sports and levels
of competition effectively accommodate the interests and abilities of members of both sexes”, 34
C.F.R. § 86.41(c)(i), on the ground that the test violates Title IX and the Constitution. CSC’s
claims are similar to the allegations of Counts I and II of the Complaint filed in National
Wrestling Coaches Association, et al. v. USDE, Case No. 1:02CV00072 EGS (D.D.C.)
(“NWCA”), in which CSC is one of the plaintiffs. Perhaps in recognition of the validity of the
1
arguments made by USDE that that action should be dismissed, CSC asks the agency to do
voluntarily what the court lacks jurisdiction to order it to do.
However, USDE should not grant CSC’s Petition because it is wrong as a matter of law
and wrong as a matter of policy. As found by all eight of the federal courts of appeals that have
considered them, the Title IX athletics regulations and policies are fully in accord with the law.1
CSC has not put forth any new arguments here that cast any doubt on the established precedents,
or that otherwise warrant the granting of its Petition.
ARGUMENT
A.
The Three-Part Test is Not a Disparate Impact Discrimination Standard
The CSC’s claim that the three-part test is unlawful is premised on the characterization of
the test as a “disparate impact standard.” CSC’s claim is entirely lacking in merit on many
grounds, not the least of which is that its premise is not valid - the concept of disparate impact,
is, by definition, not applicable to the provision of athletic opportunity under the three-part test.2
Disparate impact discrimination claims “involve . . . practices that are facially neutral in their
1
See Cohen v. Brown Univ., 101 F.3d 155, 170 (1st Cir. 1996), cert. denied, 520 U.S. 1186
(1997); Favia v. Indiana University of Pennsylvania, 7 F.3d 332, 343-44 (3d Cir.
1993); Pederson v. Louisiana State University, 213 F.3d 858, 879 (5th Cir. 2000); Miami
University Wrestling Club v. Miami University, 302 F.3d 608 (6th Cir. 2002); Boulahanis v.
Board of Regents,198 F.3d 633, 639 (7th Cir. 1999), cert. denied, 530 U.S. 1284
(2000); Chalenor v. University of North Dakota, 291 F.3d 1042 (8th Cir. 2002); Neal v. Board of
Trustees of The California State Universities, 198 F.3d 763, 770 (9th Cir. 1999); Roberts v.
Colorado State Board of Agriculture, 998 F.2d 824, 828 (10th Cir. 1993), cert. denied, 510 U.S.
1004 (1993).
2
Respondents do not agree that Title IX prohibits only intentional discrimination. However,
CSC’s petition can be denied without reaching this question because USDE has already stated
that that is the type of discrimination at issue with regard to athletics participation. See
Memorandum in Support of Defendant’s Motion to Dismiss filed on behalf of USDE by the
Department of Justice in NWCA at 22 n. 3, discussed in Subpart C, below.
2
treatment of different groups but that in fact fall more harshly on one group than another and
cannot be justified . . . .” Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (emphasis
added). For example, a minimum height standard of 5'10" for policemen or firemen is neutral on
its face, but its effect will be to bar more women than men from those professions. However,
athletics programs are sex-segregated.3 Regulations concerning the opportunity to play on
varsity teams therefore cannot be neutral on their face, but rather are inherently based on sex.4
Accordingly, in the specific world of athletic participation opportunities, sex discrimination in
the provision of those opportunities is intentional, or disparate treatment discrimination,5 which
CSC acknowledges that USDE is authorized to regulate.
Since disparate impact discrimination is not apposite to the Title IX athletic participation
policies, neither is the concept of comparison to a “qualified applicant pool”, as urged by CSC.
“[T]he Title VII concept of the ‘qualified pool’ has no place in a Title IX analysis of equal
3
The regulations, which are not challenged, explicitly authorize separate teams for each sex,
subject to certain conditions. 45 C.F.R. § 86.41(a).
4
Prongs 2 and 3 of the three-part test refer to the “underrepresented” sex, which could be male or
female, but cannot be neutral.
5
Disparate treatment is synonymous with “intentional discrimination,” regardless of the
motivation behind the disparate treatment. See, e.g., Pandazides v. Virginia Bd. of Educ., 13
F.3d 823, 830 n.9 (4th Cir. 1994) (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582
(1983), for the proposition that “‘intentional discrimination’ is treated as synonymous with
discrimination resulting in ‘disparate treatment,’ which contrasts with ‘disparate impact’”);
Haffer v. Temple University, 678 F. Supp. 517, 527 (E.D. Penn. 1988) (“‘intent’ is provided by
[the] explicit classification of intercollegiate athletic teams on the basis of gender”); see also
Pederson v. Louisiana State University, 213 F.3d 858, 880-81 (5th Cir. 2000) (“[The University]
need not have intended to violated Title IX, but need only have intended to treat women
differently.”); Leffel v. Wisconsin Interscholastic Athletic Ass’n, 444 F. Supp. 1117, 1121 (E.D.
Wis, 1978) (rule prohibiting girls from playing on boys’ teams when there is either no team or no
comparable team for girls “is an intentional discrimination, i.e., for what they deem to be
legitimate purposes, the defendants intentionally treat boy and girl athletes differently”).
3
opportunities for male and female athletes because women are not ‘qualified’ to compete for
positions on men’s teams, and vice-versa.” Cohen, 101 F.3d at 177. Because teams are sexsegregated -- and schools’ allocation of participation opportunities is explicitly based on gender - it is simply inappropriate to apply disparate impact analysis to evaluate the legality of the threepart test.
CSC’s reference to 20 U.S.C. § 1681(b) is also of no avail. That provision is not even
applicable to athletics programs. Patterned after Section 703(j) of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(j), Section 1681(b) was designed to “prohibit quotas in
university admissions and hiring, based upon the percentage of individuals of one gender in a
geographical community.” Cohen, 101 F. 2d at 175 (citing the legislative history). Even if it
were applicable, the three-part test “does not require preferential or disparate treatment for any
gender.” Id. It “merely creates a presumption that a school is in compliance with Title IX and
the applicable regulation when it achieves” a balance between female student-athletes and the
female student population. Id., quoting Kelley v. Board of Trustees, 35 F. 3d 265, 271 (7th Cir.
1994), cert. denied, 513 U.S. 1128 (1995). CSC’s application of Section 1681(b) would actually
mean that schools could not set up separate programs by sex at all.
Moreover, as USDE has recognized, the federal government is not setting the gender
balance in any school’s athletics program or other activities. Nothing in the three-part test
“requires that an institution cap or eliminate participation opportunities for men” or take any
other specific action. Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for Leave to
File Second Amended Complaint in NWCA at 7, quoting the1996 Policy Clarification. Thus,
contrary to CSC’s arguments in Subpart A(1) of its Petition, the three-part test is fully in accord
with Title IX.
4
With regard to Subparts A(2) and (3) of the Petition, since the three-part test is not a
disparate impact test, USDE need not rely on the Javits Amendment or any other statutory
provision to provide it with the authority to issue such a test. Similarly, it need not provide
evidence to establish that discrimination still exists.6 In any event, the three-part test was upheld
throughout the 1990's, and as recently as last year. See note 1, supra.
Moreover, to the extent that CSC’s argument rests on the assumption that women are
less interested in sports than men, that assumption is not only unlawfully based on stereotypes
that have the pernicious potential to freeze into place existing discrimination, but it is also
unfounded. Women’s interests in athletics cannot be assessed independent of the dearth of
opportunities they have been provided. As stated by the courts of appeals only a few years ago,
the “hubris” of opponents of USDE’s policies in claiming that women are less interested in
sports than men “is remarkable, since of course fewer women participate in sports, given the
voluminous evidence that [schools have] discriminated against women in refusing to offer them
comparable athletic opportunities to those” offered to male students. Pederson, 213 F.3d at 878
(2000); see also Neal, 198 F.3d at 769 (1999) (“[Because] the genders’ interests [are] slowly but
surely converging, . . . requiring only that each gender’s expressed interest in participating be
accommodated equally would freeze the inequality of the status quo . . . . Adopting [an] interestbased test for Title IX compliance would hinder, and quite possibly reverse, the steady increases
in women’s participation and interest in sports that have followed Title IX’s enactment.”). To
6
Contrary to CSC’s statement, discrimination against girls and women in athletics does in fact
still exist. See e.g. United States General Accounting Office, No. 01-297, Intercollegiate
Athletics: Four-Year Colleges’ Experiences Adding and Discontinuing Teams (2001);
Communities for Equity v. Michigan High School Athletic Association, 178 F. Supp. 2d 805
(W.D. Mich. 2001).
5
accept CSC’s argument would thus enshrine the very discrimination, resulting “from stereotyped
notions of women’s interest and abilities,” that Title IX was enacted to prevent. Cohen, 101 F.3d
at 178-79.
B. No Additional Guidance on Measuring Interest is Necessary
CSC also asks USDE to provide the educational institutions subject to Title IX with
guidance for measuring students’ interest in playing sports. Respondents submit that no
guidance beyond that already provided is necessary. However, if any additional guidance is
issued, in accord with the authorities quoted above, that guidance must recognize the history of
discrimination against women in athletics, the fact that such discrimination still exists, that
interest cannot be measured apart from opportunity, and that the concept of “relative interest” is
inconsistent with Title IX.
C. No Clarification is Needed on the Availability of Private Rights of Action
Finally, CSC asks USDE to address the question of whether its rules are intended to
create private rights of action against schools. Even if such rulemaking were relevant to the
question of statutory intent to create a right of action, no such rulemaking is necessary. It is clear
that under Cannon v. University of Chicago, 441 U.S. 677 (1979), individuals have a private
right of action under Title IX. As noted in USDE’s discussion of Alexander v. Sandoval, 532
U.S. 275 (2001), before the district court in NWCA, because the “crux” of a challenge to a
school’s structuring of its athletic program “is that recipients have engaged in ‘intentional gender
discrimination,” including ‘gender-conscious” cutting or capping of men’s teams, plaintiffs have
a private right of action under Cannon against the schools that allegedly cut their wrestling [or
other] teams.” Memorandum in Support of Defendant’s Motion to Dismiss at 22 n. 3 and 15-16.
6
CONCLUSION
For the reasons set forth above, Respondents request USDE to deny the CSC’s Petition
for Rulemaking, and to make no changes to the three-part test.
Respectfully submitted,
_____________________
Marcia D. Greenberger
Jocelyn F. Samuels
Dina R. Lassow
Neena K. Chaudhry
National Women’s Law Center
11 Dupont Circle, NW, Suite 800
Washington, DC 20036
(202) 588-5180
7
APPENDIX A
INTEREST OF THE RESPONDENTS
The National Women’s Law Center (the Center) is a nonprofit legal advocacy organization
dedicated to the advancement and protection of women’s rights and the corresponding
elimination of sex discrimination from all facets of American life. Since 1972, the Center has
worked to secure equal opportunity in education for girls and women through full enforcement of
Title IX. The Center has filed amicus curiae briefs in all Supreme Court cases involving Title
IX, including Cannon v. University of Chicago, North Haven Board of Education v. Bell, Grove
City College v. Bell, Franklin v. Gwinnett County Public Schools, and National Collegiate
Athletic Association v. Smith. Most recently, the Center represented the petitioner in the
landmark case of Davis v. Monroe County Board of Education. In particular, the Center has
consistently sought equal opportunities for women with respect to interscholastic and
intercollegiate athletics, and was counsel in the first comprehensive Title IX challenge to
discrimination in intercollegiate athletics, Haffer v. Temple University. The Center has also
successfully participated in the litigation of key cases involving Title IX and other laws
prohibiting sex discrimination, including Brentwood Academy v. Tennessee Secondary School
Athletic Association (S. Ct.), Mississippi University for Women v. Hogan (S. Ct.), United States
v. Virginia (S. Ct.), Neal v. California State University (9th Cir.), Boucher v. Syracuse University
(2d Cir.), Cohen v. Brown University (1st Cir.), Roberts v. Colorado State University (10th Cir.),
and Sanders v. University of Texas (W.D. Tex.).
The American Association of University Women (AAUW), an organization of 150,000 members
and 1,000 student affiliate members, has been a catalyst for the advancement of women for over
a century. In more than 1,500 communities across the country, AAUW members work to
promote education and equity for all women and girls, lifelong learning, and positive societal
change. The AAUW has historically been involved in advancing gender equity in athletics, and
has participated as amicus in a host of important Title IX athletics cases, including Brentwood
Academy v. Tennessee Secondary Athletic Association, Boucher v. Syracuse University,
Cureton v. National Collegiate Athletic Association, Neal v. Board of Trustees of the California
State Universities, Smith v. National Collegiate Athletic Association, Cohen v. Brown
University, Roberts v. Colorado State Board of Agriculture, and Cook v. Colgate University.
The American Volleyball Coaches Association (AVCA) consists of over 3,100 members who
coach volleyball nationally and internationally at the youth, high school, college, club and
Olympic levels. Because volleyball in the United States is predominantly a female sport, and is
the third most popular sport for female athletes, AVCA is particularly committed to the
advancement and development of women’s and girls’ volleyball. The organization provides a
professional network for volleyball coaches through sponsorship of an annual coaches’
convention that includes seminars designed to promote the game and advance the organization’s
legislative agenda, and through an extensive web site with free job line listings for coaching
vacancies throughout the country. AVCA educates the public about issues of concern to the
volleyball community through its newsletters, coaching aids, a professional journal, instructional
text books, videos, and national polling and participation statistics compilations. AVCA also
8
sponsors extensive annual award programs for female athletes and member coaches, through
which more than 300 coaches and student-athletes are recognized each year.
The Intercollegiate Women’s Lacrosse Coaches Association (IWLCA) develops among
intercollegiate coaches a deep sense of responsibility in teaching, promoting, and maintaining the
growth of women’s lacrosse in accordance with the highest ideals of fair play. IWLCA
stimulates the development of quality leadership for women’s lacrosse programs by recognizing
professional contributions to the sport and keeping members informed of current coaching
techniques and trends. IWLCA identifies and pursues issues relevant to women’s lacrosse
coaches and to the sport of women’s lacrosse, and provides a forum for the discussion of matters
of interest to members of the Association. IWLCA promotes cooperative efforts with other
professional organizations interested in the development of women’s lacrosse and women’s
athletics in general. During annual meetings and coaches clinics for collegiate coaches, high
schools and youth coaches, Title IX and Title VII issues are regularly discussed by guest
speakers.
The National Fastpitch Coaches Association (NFCA) formerly the National Softball Coaches
Association, is a professional-growth organization comprised of 4,100 member high school,
college, club and international fastpitch softball coaches, as well as softball players, parents of
players, umpires and fans of the game. The organization was formed by college coaches who
wanted a forum to discuss issues affecting the sport, as well as a way to honor outstanding
performances by players and coaches. The education of its members is the primary focus of the
NFCA, and its newspaper and website are used to inform and teach the membership. In addition,
the NFCA offers an in-depth coaches’ training program that covers all facets of the game, as well
as a national convention, recruiting camps, tournaments, and an awards program that honors
more than 1,000 coaches and players every year.
The Women’s Basketball Coaches Association (WBCA) is a membership organization made up of
5,000 women’s basketball coaches dedicated to the development of athletic opportunities for
female basketball players and coaches, and to the promotion of women’s basketball as an
amateur sport for women and girls. To that end, the WBCA offers annual tournaments for allstar players at the high school and college level, a members’ convention, and awards programs.
The WBCA also serves a valuable education function through its publications and newsletters, a
website that is the preeminent portal for resources on women’s basketball, and a legislative alert
service that offers up-to-date information on all legislative issues concerning women’s
basketball. The WBCA has also been at the forefront of Title IX legal issues, participating as
amicus in Cohen v. Brown University.
The Women’s Sports Foundation (WSF) is a charitable educational organization dedicated to
ensuing equal access to participation and leadership opportunities for all girls and women in
sports and fitness. The WSF membership is made up of 100,000 high school and college
students and athletes, parents, coaches, athletic administrators, and athletic referees. The
organization provides a variety of advocacy, public education, and development services for
members and non-members alike. For example, WSF advises students, parents and coaches
about how to resolve Title IX concerns; provides attorney referrals for Title IX cases; conducts
9
girls’ sports clinics; provides gender equity counseling; sponsors grant and scholarship programs
for female athletes, students, and coaches; provides national research reports and grants for
research on various aspects of women’s sports; and offers educational publications, videos, and
conferences on a variety of topics related to athletics equity for girls and women. WSF has also
advanced the development of Title IX law by participating as amicus in many important Title IX
athletics cases, including Brentwood Academy v. Tennessee Secondary School Athletic
Association, Cureton v. National Collegiate Athletic Association, Neal v. California State
University, Smith v. National Collegiate Athletic Association, Cohen v. Brown University,
Kelley v. Board of Trustees, University of Illinois, Roberts v. Colorado State University, and
Cook v. Colgate University.
10