Appeal from the United States District Court for the District of Columbia (No. 02cv00072)
Before: Edwards and Henderson, Circuit Judges, and
Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Edwards, Circuit Judge
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
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 (1992) (quoting Allen v. Wright, 468 U.S. 737, 758 (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 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.
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 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").
In 1996, after notice and a period for comment, the Department issued a clarification to illuminate the Three-Part Test. The Department's Office for Civil Rights ("OCR") then sent a "Dear Colleague" letter to interested parties explaining that the 1996 clarification confirmed that institutions may comply with the Three-Part Test by meeting any one of the three prongs and that the Three-Part Test is only one of many factors the Department examines to assess an institution's overall compliance with Title IX and the 1975 Regulations.
See Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996), transmitted by Letter from Norma V. Cantu, Assistant Secretary for Civil Rights, Department of Education (Jan. 16, 1996) ("1996 Clarification"), reprinted in Joint Appendix ("J.A.") 143-59. In response to inquiries regarding schools' elimination or capping of men's sports teams as a method of compliance, the letter stated:
The rules here are straightforward. An institution can choose to eliminate or cap teams as a way of complying with part one of the three-part test. However, nothing in the Clarification requires that an institution cap or eliminate participation opportunities for men.... Ultimately, Title IX provides institutions with flexibility and choice regarding how they will provide nondiscriminatory participation opportunities.
Appellants, the National Wrestling Coaches Association ("NWCA"), the Committee to Save Bucknell Wrestling, the Marquette Wrestling Club, the Yale Wrestling Association, and the College Sports Council, are membership organizations representing the interests of collegiate men's wrestling coaches, athletes, and alumni. They assert injuries arising from decisions by educational institutions to eliminate or reduce the size of men's wrestling programs to comply with the Department's interpretive rules implementing Title IX, specifically the Three-Part Test.
Appellants do not challenge Title IX itself or the 1975 Regulations. See Pls.' Mem. Opp'n Mot. Dismiss at 2, reprinted in J.A. 173; Am. Compl. ¶ 66, reprinted in J.A. 31; Appellants' Br. at 3, 6; Appellants' Reply Br. at 1; Oral Argument Recording at 1:02:03 (Mar. 16, 2004). As they emphasized throughout their pleadings before the District Court and in their briefs and oral argument before this court, appellants' central premise is that the enforcement policy embodied in the 1979 Policy Interpretation and the 1996 Clarification - i.e., the Three-Part Test - violates the equal protection component of the Due Process Clause of the Fifth Amendment and exceeds the Department's statutory authority by requiring the very same intentional discrimination that Title IX prohibits. Alternatively, appellants claim that the Department's policies amount to an abdication of its duty to enforce Title IX. Appellants further argue that these policy statements violate the 1975 Regulations by replacing that regime of "equal opportunity based on interest," a standard appellants embrace, with a regime of "equal participation based on enrollment," a standard appellants denounce as an impermissible preference in favor of women.
Appellants also allege several procedural infirmities in the 1979 Policy Interpretation and the 1996 Clarification that they argue render these interpretive rules invalid under the APA and other statutes. Finally, appellants claim that the Department acted unlawfully by denying without explanation a petition filed by NWCA for repeal or amendment of the 1979 Policy Interpretation. Appellants base this claim on two letters NWCA submitted to the Department in October 1995, during the comment period preceding the 1996 Clarification. In their amended complaint, appellants sought declaratory and injunctive relief, asking the District Court to vacate the 1996 Clarification and the Three-Part Test and remand the rules to the Department with instructions to "commence notice-and-comment rulemaking to amend those rules consistent with Title IX, the U.S. Constitution, and [the] Court's declaratory relief in this action." Am. Compl. ¶ 99, J.A. 40.
The Department moved to dismiss appellants' case for, inter alia, lack of subject matter jurisdiction, on the grounds that appellants lack standing to pursue these claims. After that motion was briefed and argued before the District Court, appellants sought leave to amend their complaint a second time to add the Secretary of Education and the Assistant Secretary for Civil Rights as defendants in their official capacities and to allege that NWCA includes among its members several unspecified educational institutions. The District Court denied appellants' motion to amend and granted the Department's motion to dismiss, holding that appellants had failed to allege sufficient facts demonstrating their standing and that nothing in the proffered second amended complaint would cure this jurisdictional defect. See Nat'l Wrestling Coaches Ass'n v. United States Dep't of Educ., 263 F. Supp. 2d 82, 104-27 (D.D.C. 2003). The District Court rejected on its merits appellants' APA claim regarding the NWCA petition for repeal or amendment of the 1979 Policy Interpretation. See id. at 127-28. This appeal followed.
Appellants' attacks in this lawsuit are aimed solely at the Department's 1979 Policy Interpretation and the 1996 Clarification. They do not challenge Title IX or the 1975 Regulations. Indeed, a central theory of their argument on the merits is that the Department's 1979 and 1996 actions are unlawful, in part, because they violate the statute and the 1975 Regulations. With this context in mind, it is clear that appellants have no standing to pursue this challenge, because they have not demonstrated that their alleged injuries will be redressed by the requested relief. The direct causes of appellants' asserted injuries - loss of collegiate-level wrestling opportunities for male student-athletes - are the independent decisions of educational institutions that choose to eliminate or reduce the size of men's wrestling teams. Appellants offer nothing but speculation to substantiate their claim that a favorable decision from this court will redress their injuries by altering these schools' independent decisions. Absent a showing of redressability, appellants have no standing to challenge the Department's enforcement policies, and we have no jurisdiction to consider their claims.
To satisfy the requirements of Article III standing in a case challenging government action, a party must allege an injury in fact that is fairly traceable to the challenged government action, and "it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.' " Lujan, 504 U.S. at 560-61 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). Where, as here, the plaintiff is an association seeking to sue on behalf of its members, that plaintiff must demonstrate that (1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). Accordingly, appellants must establish that at least one of their members has suffered a cognizable injury that is fairly traceable to the Department's Three-Part Test and likely to be redressed by a judicial decision declaring the Three-Part Test to be unlawful and enjoining its use.
Appellants' principal theory of injury is that the Department's interpretive rules harm their member coaches, athletes, and alumni by causing educational institutions to eliminate or reduce the size of men's wrestling teams. Under
appellants' view, schools comply with the Three-Part Test not
by offering increased athletic opportunities to female students, but by reducing the opportunities available to male
students. In support of this theory, appellants point to
recent actions by Bucknell, Marquette, and Yale Universities
either eliminating their men's wrestling teams or demoting
them to non-varsity status. See Am. Compl. ¶¶ 50-52, J.A. 27-28. Appellants contend that these schools took these adverse
actions in order to satisfy the Three-Part Test, which permits
a finding that a school is in compliance with Title IX if, among
other things, it offers athletic opportunities to members of
both sexes in numbers that are substantially proportionate to
the gender composition of the student body as a whole. For
example, appellants assert that a press release accompanying
Bucknell University's announcement in May 2001 that it
would discontinue its intercollegiate wrestling program
"cite[d] Title IX's proportionality requirements as Bucknell's
reason for eliminating the wrestling team." Id. ¶ 50, J.A. 27.
Similarly, appellants allege that after Marquette University
announced the disbanding of its wrestling program in 2001,
the Marquette athletic director made a statement at a dinner
party "indicat[ing] that Marquette might bring back its wrestling program if the legal requirements changed." Id. ¶ 51,
J.A. 27. Finally, appellants allege that when Yale University
demoted its intercollegiate varsity wrestling team to club
status in 1991 for budgetary reasons, it refused offers of
private funding, and, "[o]n information and belief, Yale declined to accept the endowment because of Title IX." Id.
¶ 52, J.A. 28.
We review de novo the District Court's decision as to standing. See Info. Handling Serv., Inc. v. Def. Automated Printing Serv., 338 F.3d 1024, 1029 (D.C. Cir. 2003). Because the District Court disposed of appellants' complaint on a motion to dismiss, we must assume that general factual allegations in the complaint embrace those specific facts that are necessary to support the claim. See Lujan, 504 U.S. at 561. Thus, in company with the District Court, we assume that appellants have stated a cognizable injury-in-fact. Nonetheless, even applying this generous standard of review, we find that appellants' factual allegations are insufficient to establish standing, because appellants have not shown how a favorable decision vacating the 1979 Policy Interpretation and the 1996 Clarification would redress their injuries. See Warth v. Seldin, 422 U.S. 490, 504 (1975).
When a plaintiff's asserted injury arises from the Government's regulation of a third party that is not before the court, it becomes "substantially more difficult" to establish standing. Lujan, 504 U.S. at 562 (citing Allen v. Wright, 468 U.S. 737, 758 (1984)); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-46 (1976); Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 416 (D.C. Cir. 1994). Because the necessary elements of causation and redressability in such a case hinge on the independent choices of the regulated third party, "it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury." Lujan, 504 U.S. at 562. In other words, mere "unadorned speculation" as to the existence of a relationship between the challenged government action and the third-party conduct "will not suffice to invoke the federal judicial power." Simon, 426 U.S. at 44.
In several cases, the Supreme Court has made clear that a plaintiff's standing fails where it is purely speculative that a requested change in government policy will alter the behavior of regulated third parties that are the direct cause of the plaintiff's injuries. In Simon, for example, organizations representing the interests of low-income persons challenged an IRS Revenue Ruling that allowed favorable tax treatment to nonprofit hospitals that offered only emergency-room services to indigents. See Simon, 426 U.S. at 28. The Court held that the plaintiffs lacked standing because their alleged injury - denial of access to certain hospital services - was caused by the regulated hospitals. See id. at 40-46. Even accepting the plaintiffs' averment that the IRS's policy encouraged hospitals to provide fewer services to indigents, id. at 42 n.23, the Court found it "speculative whether the desired exercise of the court's remedial powers ... would result in the availability to [the plaintiffs] of such services," id. at 43. Rather, "[s]o far as the complaint shed[ ] light, it [was] just as plausible that the hospitals to which [the plaintiffs] may apply for service would elect to forego favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services." Id. Accordingly, the Court found that the plaintiffs' complaint was "insufficient even to survive a motion to dismiss." Id. at 45 n.25.
Similarly, in Allen v. Wright, 468 U.S. 737 (1984), the Court held that parents of Black public school children lacked standing to challenge IRS tax policies toward racially discriminatory private schools. Id. at 739-40. The Court found it to be "entirely speculative ... whether withdrawal of a tax exemption from any particular school would lead the school to change its policies." Id. at 758. And in Warth v. Seldin, 422 U.S. 490 (1975), the Court affirmed the dismissal of plaintiffs' complaint that the defendant town's zoning ordinance effectively excluded persons of low and moderate income from living there. Assuming that the ordinance contributed, "perhaps substantially," to the cost of housing in the town, id. at 504, the Court nevertheless found that the plaintiffs failed in their obligation to allege facts showing that they would have been able to buy or rent homes in the town if the Court granted their requested remedy, id. The "remote possibility, unsubstantiated by allegations of fact, that their situation ... might improve were the court to afford relief," did not suffice to establish the redressability of the plaintiffs' injuries. Id. at 507.
More recently, this court held that an independent, multiracial organization of Republicans lacked standing to challenge the Federal Election Commission's ("FEC") funding of the Republican National Convention on the grounds that the Republican Party's delegate-selection processes discriminated against minority groups. See Freedom Republicans, 13 F.3d 412. The court found that, although the level of FEC funding was substantial, the alleged injury was not fairly traceable to any encouragement by the Government and "we ...