SACRAMENTO - Contrary to recent claims by the National Women’s Law Center, Title IX does NOT require America’s public high schools to use a rigid, sex-based formula for student sports programs that would lead to quotas and potential discrimination in athletic programs.
So argues Pacific Legal Foundation in a legal opinion letter submitted today to the 12 regional offices of the U.S. Office of Civil Rights. The case is The Applicability of Title IX’s Three-Part Test to High School Athletics.
Donor-supported PLF is a legal watchdog that litigates, pro bono, for limited government and equal protection under the law, in courts nationwide.
PLF’s legal opinion letter was submitted in response to administrative complaints that the National Women’s Law Center (NWLC) filed last November against 12 high schools across the country with the Office for Civil Rights. The complaints allege that the targeted high schools have been discriminating by failing to provide girls’ varsity sports in a proportion that mirrors the percentage of girls in their student bodies.
"The Women’s Law Center is trying to guilt trip high schools into using gender quotas in providing sports programs – and is threatening to sue if they don’t comply," said PLF attorney Joshua Thompson. "But high schools shouldn’t be intimidated, because the Women’s Law Center is flat-out wrong on the law. Title IX is not a quota mandate for high schools. Nothing in Title IX or its implementing rules forces or even encourages high schools to provide sports programs based on the percentage of girls or boys in the school. Common sense says schools should offer sports programs that reflect students’ choices, not their sex. Title IX permits common sense to prevail. It permits a flexible framework in which high school sports programs are chosen not by a rigid sex-based formula, but by focusing on what students want and what they’ll participate in."
Enacted in 1972, Title IX of the Education Amendments prohibits gender-based discrimination in certain federally funded education programs. Although it is true that federal policy interpretations of Title IX have fostered a quota approach at the college level, PLF’s legal opinion letter makes it clear that these interpretations do not apply to high schools.
"The NWLC is out of bounds by trying to smuggle a federal policy for higher education onto the playing fields of high school sports," said Joshua Thompson.
Specifically, NWLC’s complaints against the 12 high schools cites the so-called "three-part test" devised by federal regulators in 1979. This test ostensibly offers three options for compliance with Title IX: (1) a quota whereby male and female athletic participation is proportionate to male and female school enrollment; (2) progress toward instituting such a quota; and (3) fully accommodating the under represented gender’s interest in athletics. However, the effect of the three-part test has been to encourage quotas as the option easiest to demonstrate.
"The three part-test, and its encouragement of quotas, has no relevance to high schools or high-school sports," said Thompson. "No federal regulation or interpretation has ever said that high schools must abide by the three-part test and the sex-based quota system it fosters."
College Sports Council letter
Prompted by PLF’s legal opinion letter, the College Sports Council has sent a letter to school districts that were subject to NWLC complaints with OCR. "We urge you to vigorously contest this effort [to force application of the three-part test] in order to avoid what would be devastating consequences for your schools and your student athletes and potential legal consequences for your district," wrote CSC Chairman Eric Pearson in the letter to 12 school districts. CSC is a national coalition of coaches, parents, athletes, and alumni that advocates reform of Title IX enforcement.
PLF: Title IX is not a quota machine
"PLF recognizes the importance of Title IX as a protection against unfair policies in school sports," Thompson continued. "Title IX requires that public high schools make athletic opportunities available to all students, regardless of sex. But, as PLF’s letter to the Office of Civil Rights underscores, it does not require high schools to discriminate or employ quotas in the pursuit of equal rights for all students. In the words of our letter, ‘Title IX was never intended to be, nor should it be, a mechanism to create the facade of equality through proportional athletic enrollment.’"
PLF’s letter was sent to all 12 regional offices of the Office of Civil Rights READ LETTER HERE
A video of remarks by PLF attorney Joshua Thompson
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading legal watchdog that litigates, pro bono, for limited government, individual rights, and equal protection under the law, in courts nationwide.