National Wrestling Coaches Ass'n v. Dept. of Educ., No. 03-5169.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHarry T. Edwards
PartiesNATIONAL WRESTLING COACHES ASSOCIATION, et al., Appellants, v. DEPARTMENT OF EDUCATION, Appellee.
Docket NumberNo. 03-5169.
Decision Date14 May 2004
366 F.3d 930
NATIONAL WRESTLING COACHES ASSOCIATION, et al., Appellants,
v.
DEPARTMENT OF EDUCATION, Appellee.
No. 03-5169.
United States Court of Appeals, District of Columbia Circuit.
Argued March 16, 2004.
Decided May 14, 2004.

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Appeal from the United States District Court for the District of Columbia (No. 02cv00072).

Lawrence J. Joseph argued the cause and filed the briefs for appellants.

Andrew L. Schlafly was on the brief for amici curiae Eagle Forum Education & Legal Defense Fund and Independent Women's Forum in support of reversal. Lawrence J. Joseph entered an appearance.

Thomas M. Bondy, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern, Attorney.

Marcia D. Greenberger and Dina R. Lassow were on the brief for amici curiae National Women's Law Center, et al. in support of affirmance.

Before: EDWARDS and HENDERSON, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Senior Circuit Judge WILLIAMS.

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HARRY T. EDWARDS, Circuit Judge:


Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in federally funded educational programs and activities. That prohibition applies to intercollegiate athletics pursuant to regulations promulgated by the Secretary of Health, Education, and Welfare in 1975. Appellee Department of Education ("Department") is charged with enforcing these provisions. The Department assesses universities' compliance with Title IX and the implementing regulations according to various enforcement policies, including a three-part test first issued in 1979 and clarified in 1996.

Appellants are several membership organizations that represent the interests of collegiate men's wrestling coaches, athletes, and alumni, who claim to have been injured by the elimination of men's varsity wrestling programs at certain universities. In this action for declaratory and injunctive relief, appellants challenge only the three-part test enunciated in the 1979 Policy Interpretation and the 1996 Clarification on the grounds that they violate the Constitution, Title IX, the 1975 regulations, and the Administrative Procedure Act ("APA"). Appellants do not challenge the 1975 regulations or any other regulations promulgated pursuant to Title IX. The District Court granted the Department's motion to dismiss for lack of subject matter jurisdiction, on the grounds that appellants lack standing under Article III of the Constitution. The District Court also rejected on the merits appellants' separate claim under the APA that the Department unlawfully denied their petition for amendment or repeal of the enforcement policies.

We affirm the decision of the District Court in all respects. Appellants' alleged injury results from the independent decisions of federally funded educational institutions that choose to eliminate or reduce the size of men's wrestling teams in order to comply with Title IX. Assuming that this allegation satisfies Article III's injury-in-fact requirement, we hold that appellants nevertheless lack standing because they have failed to demonstrate how a favorable judicial decision on the merits of their claims will redress this injury. The Supreme Court has made it clear that "when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily `substantially more difficult' to establish." Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992) (quoting Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 3328, 82 L.Ed.2d 556 (1984)).

In this case, appellants offer nothing but speculation to substantiate their assertion that a favorable judicial decision would result in schools altering their independent choices regarding the restoration or preservation of men's wrestling programs. Appellants do not contest the constitutionality of Title IX, nor do they challenge the 1975 regulations. Therefore, that legal regime, which requires schools to take gender equity concerns into account when structuring their athletic programs, would remain in place even if the disputed 1996 Clarification and the 1979 Policy Interpretation were revoked. And under that legal regime, schools would still have the discretion to eliminate men's wrestling programs, as necessary, to comply with the gender equity mandate of Title IX. A judicial decision striking down the 1996 Clarification and the 1979 Policy Interpretation would not afford appellants redress sufficient to support standing.

In the alternative, we hold that, even if they have standing, appellants' claims are barred by § 704 of the APA. The availability of a private cause of action under Title IX directly against the universities

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themselves constitutes an adequate remedy that precludes judicial review under § 704. Finally, we affirm the District Court's rejection of appellants' claim that the Department unlawfully denied their petition for repeal or amendment of the enforcement policies. Appellants' submissions to the Department cannot be construed as such a petition; and, in any event, the Department's response was not improper.

I. BACKGROUND

Enacted in response to evidence of "massive, persistent patterns of discrimination against women in the academic world," 118 CONG. REC. 5,804 (1972) (statement of Sen. Bayh), Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in federally funded educational programs and activities. See Education Amendments of 1972, Pub.L. No. 92-318, Title IX, §§ 901-907, 86 Stat. 235, 373-75 (codified as amended at 20 U.S.C. § 1681 et seq. (2000)). Each federal agency with authority to extend federal financial assistance to an educational program or activity is authorized and directed to ensure the recipient's compliance with Title IX's antidiscrimination mandate through the promulgation of regulations. See 20 U.S.C. § 1682. Institutions that fail to comply with Title IX or these regulations face termination of federal funding, though an implementing agency must first attempt to secure voluntary compliance before imposing this ultimate sanction. See id. Title IX does not require recipients of federal funding to grant preferential treatment to members of one sex to remedy any disproportion that may exist in the distribution of resources or benefits between sexes, relative to the gender composition of the relevant community. See 20 U.S.C. § 1681(b). However, the statute permits the consideration of such an imbalance in enforcement proceedings. See id. ("[T]his subsection shall not be construed to prevent the consideration... of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.").

In 1974, Congress directed the Secretary of Health, Education, and Welfare ("HEW"), the Department's predecessor agency, to promulgate regulations implementing Title IX in the area of intercollegiate athletics. See Education Amendments of 1974, Pub.L. No. 93-380, § 844, 88 Stat. 484, 612. As issued in 1975, these regulations prohibit sex-based discrimination in any interscholastic, intercollegiate, club, or intramural athletic program. See 45 C.F.R. § 86.41(a) (2003) (subsequently codified at 34 C.F.R. § 106.41(a) (2003)) ("1975 Regulations"). To that end, the regulations require that recipients of federal funding provide "equal athletic opportunity for members of both sexes." 45 C.F.R. § 86.41(c); 34 C.F.R. § 106.41(c). The Department determines whether an institution provides equal athletic opportunities to both sexes by examining, inter alia, "[w]hether 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); 34 C.F.R. § 106.41(c)(1). These regulations were recodified without substantial change in 1980, after HEW's responsibility for implementing Title IX was transferred to the newly organized Department of Education. See Department of Education Organization Act, Pub.L. No. 96-88, §§ 301, 505, 93 Stat. 668, 677, 691 (1979) (codified at 20 U.S.C. §§ 3411, 3441, 3505 (2000)); 45 Fed.Reg. 30,802, 30,962 (May 9, 1980).

The dispute in this case concerns a policy interpretation adopted by HEW in 1979 and clarified by the Department in 1996, which provides further guidance as to how the Department assesses compliance with

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Title IX and the 1975 Regulations. See 44 Fed.Reg. 71,413 (Dec. 11, 1979) ("1979 Policy Interpretation"). The Policy Interpretation explains that an institution's compliance with the "interests and abilities" requirement of subsection (c)(1) of the 1975 Regulations will be assessed in part pursuant to a three-part test that asks:

(1) Whether intercollegiate level participation opportunities for male and female students 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, whether 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, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

44 Fed.Reg. 71,413, 71,418 (Dec. 11, 1979) ("Three-Part Test").

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  • Nat'l Collegiate Athletic Ass'n v. Governor of N.J., Nos. 13–1713
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    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2013
    ...conduct that would otherwise be illegal in the absence of the Government's action.” Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 940–41 (D.C.Cir.2004). Here, the Leagues do not purport to enjoin third parties from attempting to fix games. The Leagues have sued to block the......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 21, 2017
    ...of sovereign immunity under § 702 is limited by the ‘adequate remedy’ bar of § 704," Nat'l Wrestling Coaches Ass'n v. Dep't of Educ. , 366 F.3d 930, 947 (D.C. Cir. 2004) (quoting 5 U.S.C. § 704 ); see also Transohio Sav. Bank v. Dir., OTS , 967 F.2d 598, 607 (D.C. Cir. 1992), and go on to a......
  • American Soc. for the Prev. V. Ringling Brothers, Civ. Action No. 03-2006 (EGS).
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    • August 23, 2007
    ...plaintiffs are not prohibited from raising a Chevron challenge to the regulation. See Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 947 (D.C.Cir.2004) (citing with approval decisions from other circuits holding that challenges to agency policies may be aired in lawsuits whe......
  • El Rio Santa Cruz Neigh. v. U.S. Dept. of Health, No. 04-5089.
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 8, 2005
    ...See, e.g., Envtl. Def. Fund v. Reilly ("EDF "), 909 F.2d 1497, 1501 (D.C.Cir.1990); Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C.Cir.2004); Council of & for the Blind v. Regan ("Council"), 709 F.2d 1521, 1527, 1531-32 & n. 75 (D.C.Cir.1983) (en banc). Succinctly p......
  • Request a trial to view additional results
248 cases
  • Nat'l Collegiate Athletic Ass'n v. Governor of N.J., Nos. 13–1713
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2013
    ...conduct that would otherwise be illegal in the absence of the Government's action.” Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 940–41 (D.C.Cir.2004). Here, the Leagues do not purport to enjoin third parties from attempting to fix games. The Leagues have sued to block the......
  • Perry Capital LLC v. Mnuchin, No. 14-5243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 21, 2017
    ...of sovereign immunity under § 702 is limited by the ‘adequate remedy’ bar of § 704," Nat'l Wrestling Coaches Ass'n v. Dep't of Educ. , 366 F.3d 930, 947 (D.C. Cir. 2004) (quoting 5 U.S.C. § 704 ); see also Transohio Sav. Bank v. Dir., OTS , 967 F.2d 598, 607 (D.C. Cir. 1992), and go on to a......
  • American Soc. for the Prev. V. Ringling Brothers, Civ. Action No. 03-2006 (EGS).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 23, 2007
    ...plaintiffs are not prohibited from raising a Chevron challenge to the regulation. See Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 947 (D.C.Cir.2004) (citing with approval decisions from other circuits holding that challenges to agency policies may be aired in lawsuits whe......
  • El Rio Santa Cruz Neigh. v. U.S. Dept. of Health, No. 04-5089.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 8, 2005
    ...See, e.g., Envtl. Def. Fund v. Reilly ("EDF "), 909 F.2d 1497, 1501 (D.C.Cir.1990); Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C.Cir.2004); Council of & for the Blind v. Regan ("Council"), 709 F.2d 1521, 1527, 1531-32 & n. 75 (D.C.Cir.1983) (en banc). Succinctly p......
  • Request a trial to view additional results

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