PLF’s lawsuit, American Sports Council v. Department of Education, was dismissed yesterday. This is really unfortunate news. The court held that American Sports Council (ASC) did not suffer any injury as a result of the Three-Part Test’s application to high schools. Accordingly, ASC does not have “standing” to have its claim adjudicated. So, instead of reaching the merits of ASC’s claim — whether the Three-Part Test can be constitutionally and statutorily applied to high schools – ASC was kicked out of court.
On its face, the Three-Part applies to intercollegiate athletics. Indeed, its actual title is, “A Policy Interpretation: Title IX and Intercollegiate Athletics.” It requires that colleges engage in sex-balancing by requiring institutions to have a proportional representation of male and female athletes at each school. While this alone is constitutionally troubling, the rub with this latest lawsuit is that sex-quota activists have been using the Three-Part Test to force sex-balancing on high schools. The law neither allows this nor was ever designed for this.
Accordingly, this dismissal is especially troubling, because ASC’s arguments on the merits of the lawsuit are so persuasive. There is absolutely no evidence that the Three-Part Test was ever intended to be applied to high schools. The Three-Part Test’s enabling statute clearly does not authorize its application to high schools. And, most importantly, Congress assembled no evidence regarding pervasive discrimination in America’s high schools that can constitutionally justify treating people differently on the basis of sex. To do so, despite having no evidence of discrimination, violates both boys and girls right to equal protection under the law, period.
As you know, last week PLF secured a very important victory in the United States Supreme Court in Sackett v. Environmental Protection Agency. There, the EPA told the Sacketts that they could not use their land, and when the Sacketts sued, the EPA tried to get their case dismissed. The Sacketts were facing fines of $75,000/day, and the EPA said they were not allowed in court. Fortunately, the Supreme Court told the EPA to take a hike and gave the Sacketts their day in court. Like the Sacketts, ASC – and the student athletes, coaches, and parents it represents — is being denied its day in court. It’s sad that such despicable and unconstitutional behavior can go unchecked, but the Three-Part Test’s application to high schools, and the discrimination it perpetuates, goes on, unchecked, because ASC allegedly lacks “standing” to challenge it.
ASC and PLF are evaluating what their next step will be, and we are leaving all of our options open. What is clear, however, is that unconstitutional discrimination against high school athletes has to stop. How that goal is best accomplished, will be decided another day. We will keep you apprised.
[This post was updated to provide more background on the Three-Part Test.]