In a recent letter from Pacific Legal Foundation to the Office for Civil Rights, the conservative legal foundation stated that the Title IX policy used to measure a school’s compliance with the gender-equity law only applies to “intercollegiate” sports – not high school.
“The Three-Part Test policy interpretation that narrowed the methods used for demonstrating compliance with Title IX for intercollegiate sports does not apply to high schools,” said an attorney with Pacific Legal Foundation in the official letter to the OCR. “Moreover, because of the problems the Three-Part Test has created at the intercollegiate level, it should be revisited.”
The foundation is questioning the 1979 policy interpretation that established the “three-part test” which lays out the requirement that athletic programs offer equal opportunities for men and women through three options: 1.) offering athletic opportunities that are proportionate to overall enrollment, 2.) demonstrating the program has a history of expanding opportunities for women, or 3.) demonstrating that the program is meeting the athletic interests and abilities of its student body.
Specifically, Pacific Legal Foundation argues that the policy uses the word “intercollegiate,” not “interscholastic,” and that the three-part test violates the equal protection clause of the Constitution, because the Department of Education has not offered evidence to justify applying the test to high schools.
Those in opposition to the legal foundation’s position state that the policy was interpreted in 1979, and there have been prior cases where the Office for Civil Rights has shown how and why the three-part test applies to interscholastic institutions.
“Title IX applies to institutions receiving Federal Funding, and interscholastic institutions do just that,” said Helen Grant, the principal of Helen Grant Consulting, a firm that specializes in Title IX program reviews and consulting. “We must remember, too, that intercollegiate sports gain student-athletes from club, and predominantly, interscholastic sports.”
Grant holds that there has to be regulations that ensure participation by women in the same range of sports opportunities as men: “hence, Title IX.”
The Pacific Legal Foundation raised this same policy issue in 2008, requesting the OCR to clarify the three-part test’s application to high school athletics. The Office replied with a letter noting that several courts have applied the test to high schools and quoted language in the original policy interpretation that refers to high schools:
“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient…”
The OCR rejected the argument that the test violates the equal protection clause.
“I don’t think Pacific Legal Foundation’s stance will be supported,” said Donna Lopiano, the president of Sports Management Resources and the former head of the Women’s Sports Foundation. “Title IX, specifically section 106.41, applies to both interscholastic and collegiate athletics.”
