College Sports Council Unearths a Title IX “Smoking Gun”

WASHINGTON, D.C.- January 6. TODAY marks the two-year anniversary of the ongoing effort by the College Sports Council (CSC) to reform the "Three-Part Test" that the Department of Education uses to enforce Title IX, the landmark civil rights law intended originally to end gender-based discrimination in education.

Contrary to Title IX's intent, the Three-Part Test includes a quota that has caused the wholesale elimination of thousands of athletic opportunities for young men and boys at schools across the country, costing student-athletes both scholarships and the chance to compete.

In a significant legal development, CSC recently unearthed a "smoking gun"
memorandum in the Library of Congress papers of the Hon. Patricia Roberts
Harris, the former Secretary of Health, Education and Welfare (HEW) who signed the original Three-Part Test in 1979.

"Her papers make clear that the 1979 Three-Part Test was simply a tentative proposal for possible future action, and not binding on either HEW or the public," said CSC's attorney, Larry Joseph.

In what would be news to every court that has since considered the Three-Part Test, the 1979 HEW document states that "failure to meet the [1979]
compliance factors does not constitute proof that an educational institution violated Title IX."

"The 1979 HEW document completely undermines the decisions from other courts that have deferred to the Three-Part Test, because HEW itself
candidly acknowledged that it was not taking any final, binding action," Joseph added.

"We are very pleased with how far we have come in so short a time and the
recent discovery of this new information is a quantum leap for our case." Pearson said.

As summarized below, CSC currently has four pending lawsuits.

"We knew when we started that Title IX reform would take some time," Pearson added. "After all, the current mess is the result of almost 30 years of lawsuits by trial lawyers and quota advocacy groups. This is the first time ever that coaches, students, parents, and alumni from different sports have come together in a unified effort to push for common sense reform."

The CSC's Pending Lawsuits:
1. NWCA et al v. Dept. of Education, No. 03-5169 (U.S. Court of Appeals for the D.C. Circuit)

In January 2002, CSC, the National Wrestling Coaches Association, and
student-alumni groups from Yale, Bucknell, and Marquette sued the Department of Education over the 1996 Clinton-era policy that significantly revised the original 1979 Three-Part Test. On June 25, 2003, CSC appealed the district court's June 11, 2003 dismissal of the NWCA suit. Joseph said "The 1979 HEW memorandum that we found in October 2003 and filed in court in November 2003 proves what we have said all along: the Clinton administration made profound changes to the Three-Part Test under the guise of merely 'clarifying' it, all in violation of the Administrative Procedure Act." Briefing is underway, with oral argument
scheduled for March 16, 2004.

2. CSC v. Dept. of Education, No. 03-2588 (U.S. District Court for the
District of Columbia)

In December 2003, CSC sued the Department of Education in a separate action challenging the Department's July 28, 2003 denial of CSC's petition to repeal the Three-Part Test. Regardless of the outcome or timing of the pending appeal, the new CSC suit avoids all the procedural defects that the district court or the Department of Education alleged in the first suit. For example, the district court in the first lawsuit held that plaintiffs have standing to challenge "an improper denial of a petition," because it "constitutes a concrete and particularized injury, directly caused by theagency to which the petition was addressed, and redressable by this Court."

Also, because the Department denied the petition in 2003, it cannot argue
that the 6-year statute of limitation applies or that CSC should sue
schools: the Department is the only possible party to sue for its petition denial. The new Department of Education suit is in the preliminary stages, but should commence in early 2004.

3. CSC v. General Accounting Office, No. 03-1911 (U.S. District Court for the District of Columbia)

In September 2003, CSC sued the General Accounting Office (GAO), the
Comptroller General David M. Walker, and a GAO staffer named Marnie S. Shaul over a 2001 GAO report, which fails to accurately assess the impact of Title IX enforcement on college and scholastic athletics. CSC claims that GAO failed to comply with the terms of Section 805 of the Higher Education Amendments of 1998, which specified what the GAO report must cover. For example, by ignoring thousands of pre-existing men's and women's athletic teams, the GAO grossly understated men's losses and overstated women's gains in the 1980s and 1990s. The GAO suit is in the preliminary stages, but should commence in early 2004.

4. CSC v. Paige et al., No. 03-1740 (U.S. District Court for the District of Columbia)

In August 2003, CSC sued the Secretary of Education Roderick Paige and the Department of Education's Chief Information Officer William Leidinger under the Data Quality Act (DQA). The suit challenges the Department's dissemination of the "Final Report" prepared by the Secretary's Commission on Opportunity in Athletics, both because the Department never conducted the required pre-release data quality review and because the Department failed to correct the report's deeply flawed statistics. The Paige suit is in the preliminary stages, but should commence in early 2004.

Additional Background and Sources:

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