Advocacy group plans Title IX lawsuit over high schools

An advocacy group for men's and boys' sports plans to file suit against the U.S. Department of Education Thursday, alleging that Title IX enforcement in high school athletics programs is unconstitutional because it violates the equal protection clause.

Attorneys at the Pacific Legal Foundation plan to file the suit in U.S. District Court for the District of Columbia on behalf of the American Sports Council, known until now as the College Sports Council.

The ASC suit follows complaints filed by the National Women's Law Center with the Department of Education's Office for Civil Rights in November. The NWLC alleges that a dozen school districts across the United States - including New York, Houston and Chicago - fail to give equal opportunities to girls and boys. The complaints were based largely on gaps between the number of boys and girls playing sports in the district.

"There have been a wave of copy cat complaints (since the NWLC complaint) where hundreds of schools have been challenged on proportionality," ASC chairman Eric Pearson said, citing cases in Washington, Oregon and Idaho. "We fear the increased threat of litigation will lead schools to really clamp down on participation numbers (for boys) to achieve a 50-50 balance."

More boys than girls play high school sports by about 1.3 million.

The participation requirements of Title IX require a school to pass one part of a three-part test:

• Test 1: A school's male and female athletes are proportionate to enrollment.

• Test 2: A school has a history and continuing practice of expanding opportunities for female students.

• Test 3: A school can demonstrate that the interests and abilities of female students are fully and effectively accommodated.

The ASC maintains the three-part test was written for colleges and does not pertain to high schools, particularly in regards to proportionality, a position the NWLC flatly rejects.

"Title IX applies to high schools and it applies to high school sports programs. The idea that high schools are different because their resources are limited just doesn't hold up," said Fatima Goss Graves, NWLC vice president for education and employment. "Any argument that girls need fewer opportunities in athletics is typically based on stereotypes that girls do not want to play.

"History has shown us that when you give girls the opportunity to play, they do play."

Department of Education spokesperson Jim Bradshaw points to a footnote in Title IX regulations that refers to the policy interpretation establishing the three-part test: "Although the 1979 Policy Interpretation is designed for intercollegiate athletics, its general principles often will apply to interscholastic, club, and intramural athletic programs."

The ASC says it believes if the three-part test is applied to high school that boys' teams at some schools will be dropped or curtailed.

"We have not seen actual cuts yet but we have seen the denial of opportunity," Pearson said, citing instances in Colorado where club volleyball and hockey programs have not been allowed to achieve varsity status. "We believe a gender quota in high school is a huge leap and an over-reach that will lead to the elimination of teams and the capping of participation rates in boys' sports."

The Pacific Legal Foundation petitioned the Department of Education in 2007 to revise or repeal Title IX enforcement guidelines as they relate to high schools. The department declined.

"These sound like the same arguments they have re-hashed for years and years, trying to use Title IX as a scapegoat when what has really happened is that opportunities for men and women have increased," said Goss Graves. "Rather than looking at this as a zero sum game, they should be looking at ways to increase opportunities for both men and women."

Contributing: Andy Gardiner