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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2004 Decided May 14, 2004
No. 03-5169
NATIONAL WRESTLING COACHES ASSOCIATION, ET AL.,
APPELLANTS
v.
DEPARTMENT OF EDUCATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00072)
Lawrence J. Joseph argued the cause and filed the briefs
for appellants.
Andrew L. Schlafly was on the brief for amici curiae Eagle
Forum Education & Legal Defense Fund and Independent
Women’s Forum in support of reversal. Lawrence J. Joseph
entered an appearance.
Thomas M. Bondy, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Peter D. Keisler, Assistant Attorney General, Roscoe C. How-
ard, Jr., U.S. Attorney, and Mark B. Stern, Attorney.
Marcia D. Greenberger and Dina R. Lassow were on the
brief for amici curiae National Women’s Law Center, et al. in
support of affirmance.
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
EDWARDS, Circuit Judge: Title IX of the Education Amend-
ments 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, Edu-
cation, and Welfare in 1975. Appellee Department of Edu-
cation (‘‘Department’’) is charged with enforcing these provi-
sions. 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 rep-
resent 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 unlawful-
3
ly 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 deci-
sions 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. There-
fore, 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 neces-
sary, 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,
4
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. Appel-
lants’ submissions to the Department cannot be construed as
such a petition; and, in any event, the Department’s response
was not improper.
I. BACKGROUND
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 edu-
cational programs and activities. See Education Amend-
ments 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 reme-
dy 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 TTT 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.’’).
5
In 1974, Congress directed the Secretary of Health, Edu-
cation, and Welfare (‘‘HEW’’), the Department’s predecessor
agency, to promulgate regulations implementing Title IX in
the area of intercollegiate athletics. See Education Amend-
ments of 1974, Pub. L. No. 93-380, § 844, 88 Stat. 484, 612.
As issued in 1975, these regulations prohibit sex-based dis-
crimination 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 opportu-
nity 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 inter-
ests 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 trans-
ferred 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 Depart-
ment assesses compliance with Title IX and the 1975 Regula-
tions. 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’’ re-
quirement 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 oppor-
tunities for male and female students are provided in
numbers substantially proportionate to their respec-
tive enrollments; or
6
(2) Where the members of one sex have been and
are underrepresented among intercollegiate athletes,
whether the institution can show a history and con-
tinuing practice of program expansion which is de-
monstrably responsive to the developing interest and
abilities of the members of that sex; or
(3) Where the members of one sex are underrepre-
sented among intercollegiate athletes, and the insti-
tution 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 Depart-
ment 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 Guid-
ance: The Three-Part Test (Jan. 16, 1996), transmitted by
Letter from Norma V. Cant´, Assistant Secretary for Civil
u
Rights, Department of Education (Jan. 16, 1996) (‘‘1996 Clari-
fication’’), reprinted in Joint Appendix (‘‘J.A.’’) 143-59. In
response to inquiries regarding schools’ elimination or cap-
ping 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 opportu-
nities for menTTTT Ultimately, Title IX provides
7
institutions with flexibility and choice regarding how
they will provide nondiscriminatory participation op-
portunities.
Id. at 4, J.A. 146.
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 organiza-
tions 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, re-
printed 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 authori-
ty 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
8
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 consis-
tent 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 grant-
ed the Department’s motion to dismiss, holding that appel-
lants 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.
II. ANALYSIS
A. Standing
Appellants’ attacks in this lawsuit are aimed solely at the
Department’s 1979 Policy Interpretation and the 1996 Clarifi-
cation. They do not challenge Title IX or the 1975 Regula-
9
tions. 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 govern-
ment 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 Depart-
ment’s interpretive rules harm their member coaches, ath-
10
letes, and alumni by causing educational institutions to elimi-
nate 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 stu-
dents, 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 wres-
tling 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 de-
clined 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 Servs., Inc. v. Def. Automated
Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). Be-
cause 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
11
that appellants have stated a cognizable injury-in-fact. None-
theless, 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 Govern-
ment’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 ser-
vices 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 en-
couraged hospitals to provide fewer services to indigents, id.
at 42 n.23, the Court found it ‘‘speculative whether the
12
desired exercise of the court’s remedial powers TTT 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 plain-
tiffs] 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. Ac-
cordingly, 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 discrim-
inatory private schools. Id. at 739-40. The Court found it to
be ‘‘entirely speculative TTT 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 effec-
tively excluded persons of low and moderate income from
living there. Assuming that the ordinance contributed, ‘‘per-
haps 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 TTT
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, multira-
cial 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 [could not]
begin to predict’’ the impact of withdrawal of federal funding
13
on the Party’s decisions as to delegate selection. Id. at 418-
19.
In this case, appellants offer nothing to substantiate their
assertion that a decision from the court vacating the 1979
Policy Interpretation and the 1996 Clarification will redress
their injuries by altering schools’ independent decisions
whether to eliminate or retain their men’s wrestling pro-
grams. As the Department emphasized when issuing its 1996
Clarification, nothing in the Three-Part Test requires schools
to eliminate or cap men’s wrestling or any other athletic
program. See 1996 Clarification at 4, J.A. 146. This clarifi-
cation is consistent with the fact that Bucknell and Mar-
quette maintained their men’s wrestling programs for dec-
ades after the adoption of the Three-Part Test.
Appellants do not suggest that any particular school neces-
sarily would forego elimination of a wrestling team or rein-
state a previously disbanded program in the absence of these
interpretive rules, except to say that Marquette University
‘‘might bring back its wrestling program if the legal require-
ments changed.’’ Am Compl. ¶ 51, J.A. 27. Indeed, appel-
lants appear to understand that judicial relief in this case
would not afford the remedy that they seek. At oral argu-
ment, counsel for appellants candidly said that, if his clients
prevail, appellants think they may have ‘‘better odds’’ of
retaining their desired wrestling programs. Counsel’s candor
was admirable, but a quest for ill-defined ‘‘better odds’’ is not
close to what is required to satisfy the redressability prong of
Article III.
On the record at hand, appellants fall far short of establish-
ing the requisite likelihood that the educational institutions
whose choices lie at the root of appellants’ alleged injuries will
behave any differently with respect to men’s wrestling if
appellants prevailed on the merits and secured their request-
ed relief. Indeed, in the posture of this case, it is difficult to
imagine how appellants could make such a showing. Even if
appellants prevailed on the merits in their challenge to the
Three-Part Test, Title IX and the 1975 Regulations would
still be in place. Federally funded schools would still be
14
required to provide athletic opportunities in a manner that
equally accommodated both genders. See 45 C.F.R.
§ 86.41(c); 34 C.F.R. § 106.41(c). As a consequence, nothing
but speculation suggests that schools would act any different-
ly than they do with the Three-Part Test in place. Schools
would remain free to eliminate or cap men’s wrestling teams
and may in some circumstances feel compelled to do so to
comply with the statute and the 1975 Regulations. This is
particularly so since Title IX itself permits evidence of dispro-
portion in the distribution of benefits between sexes to be
considered in enforcement proceedings against recipients of
federal funding. See 20 U.S.C. § 1681(b). Moreover, other
reasons unrelated to the challenged legal requirements may
continue to motivate schools to take such actions. See Buck-
nell Univ. News Release (May 2, 2001), reprinted in J.A. 573
(explaining that Bucknell’s gender equity plan was not only ‘‘a
matter of federal law,’’ but also ‘‘morally TTT the right thing
to do’’).
Appellants’ request for a judicial order compelling the
Department to undertake notice-and-comment rulemaking to
amend its enforcement policies does not alter this analysis.
The challenged policies – the 1979 Policy Interpretation and
the 1996 Clarification – are interpretive guidelines that the
Department was not obligated to issue in the first place.
Appellants point to no basis for the notion that the Depart-
ment would be required to replace the challenged policies
with anything new, were the court to invalidate the existing
1979 Policy Interpretation and the 1996 Clarification. And, in
any event, appellants do not even challenge the underlying
1975 Regulations, which, as we have noted, clearly permit
universities to follow some of the practices that appellants
oppose. Accordingly, appellants have failed to establish that
it is likely that a favorable decision from the court on the
merits of their claims would provide any redress for their
alleged injuries.
We recognize that courts occasionally find the elements of
standing to be satisfied in cases challenging government
action on the basis of third-party conduct. These cases fall
into two easily distinguishable categories. First, a federal
court may find that a party has standing to challenge govern-
15
ment action that permits or authorizes third-party conduct
that would otherwise be illegal in the absence of the Govern-
ment’s action. See Animal Legal Def. Fund, Inc. v. Glick-
man, 154 F.3d 426, 440-44 (D.C. Cir. 1998) (en banc)
(‘‘ALDF’’); see also Consumer Fed’n of Am. v. FCC, 348 F.3d
1009, 1012 (D.C. Cir. 2003); America’s Cmty. Bankers v.
FDIC, 200 F.3d 822, 827-29 (D.C. Cir. 2000); Tel. & Data
Sys., Inc. v. FCC, 19 F.3d 42, 46-47 (D.C. Cir. 1994). In
ALDF, for example, we upheld a plaintiff’s standing to chal-
lenge U.S. Department of Agriculture (‘‘USDA’’) regulations
concerning the treatment of primates by zoos and other
exhibitors of animals. See 154 F.3d 426. The plaintiff in that
case alleged aesthetic injuries that resulted from observing
primates living in allegedly inhumane conditions. See id. at
429-30. Although this injury resulted from the actions of
third parties that chose to maintain their captive primates in
such conditions, we held that the plaintiff had standing to
challenge the USDA regulations. See id. at 438-44. The
plaintiff alleged that the regulations permitted exhibitors to
maintain primates in inhumane conditions, even though such
conduct would have been illegal in the absence of those
regulations. See id. at 438. Accordingly, a favorable decision
would redress the plaintiff’s injury because animal exhibitors
would no longer be able to keep animals in inhumane living
conditions without violating the law. See id. at 443. Causa-
tion and redressability thus are satisfied in this category of
cases, because the intervening choices of third parties are not
truly independent of government policy. Moreover, they
could only preclude redress if those third parties took the
extraordinary measure of continuing their injurious conduct
in violation of the law. See id. at 441 (citing Int’l Ladies’
Garment Workers’ Union v. Donovan, 722 F.2d 795, 811
(D.C. Cir. 1983)).
These cases would only support appellants’ assertion of
standing if appellants took the position that gender-conscious
elimination of men’s sports teams would be illegal in the
absence of the challenged enforcement policies. Appellants
make no such claim. As we have emphasized, appellants do
not challenge Title IX or the 1975 Regulations; indeed, they
16
embrace those regulations, which they characterize as proper-
ly requiring schools to provide ‘‘equal opportunity based on
interest.’’ Necessarily, then, they must concede that schools
may make gender-conscious decisions in order to remedy
discrimination and equally accommodate both sexes, in com-
pliance with the statute and regulations. See 45 C.F.R.
§ 86.41(c)(1); 34 C.F.R. § 106.41(c)(1). This includes consid-
ering ‘‘statistical evidence tending to show that TTT an imba-
lance exists [between men and women] with respect to the
participation in’’ intercollegiate athletic programs in a school.
See 20 U.S.C. § 1681(b). Therefore, even if the Three-Part
Test were vacated, schools would remain free to take gender
into account when designing and funding their athletic pro-
grams. The ‘‘causation by authorization’’ theory of this first
category of cases thus lends no support to appellants’ claim of
standing.
Second, some cases have held that plaintiffs have standing
to challenge government action on the basis of injuries caused
by regulated third parties where the record presented sub-
stantial evidence of a causal relationship between the govern-
ment policy and the third-party conduct, leaving little doubt
as to causation and the likelihood of redress. In Tozzi v.
United States Department of Health & Human Services, 271
F.3d 301 (D.C. Cir. 2001), for example, a manufacturer of
medical supplies made of PVC plastic challenged a decision
by the Secretary of Health and Human Services to add the
chemical dioxin to the category of ‘‘known’’ carcinogens. The
manufacturer alleged that the decision harmed its business
reputation and profits, because concern over the dioxin haz-
ards associated with the incineration of PVC plastic deterred
the manufacturer’s customers from purchasing its products.
See id. at 307-08. We held that the manufacturer had
standing. See id. at 308-10. The record left ‘‘little doubt’’
that the Government’s authoritative statement regarding the
carcinogenicity of dioxin was a substantial factor motivating
the decisions of the third parties that were the direct source
of the plaintiff’s injuries. See id. at 308-09. Specifically, the
plaintiff introduced affidavits and other record evidence dem-
onstrating that municipalities and health care organizations
17
opted to phase out their use of PVC plastic as a direct result
of the Secretary’s decision. See id. Moreover, the court
noted that ‘‘[w]hen the government attaches an inherently
pejorative and damaging term such as ‘carcinogen’ to a
product, the probability of economic harm increases exponen-
tially.’’ Id. at 309. Based on this record evidence, the court
found it ‘‘not at all ‘speculative’ ’’ that the addition of dioxin to
the list of known carcinogens caused municipalities and com-
panies to reduce or end their use of PVC plastic, and that a
decision setting aside the Government’s action likely would
prevent that result. Id. at 309-10.
Similarly, in Block v. Meese, 793 F.2d 1303 (D.C. Cir. 1986),
we held that a film distributor had standing to challenge a
decision by the Government to classify as ‘‘political propagan-
da’’ certain films that the plaintiff wished to distribute. The
plaintiff alleged that the government action harmed his eco-
nomic interests, because potential customers would no longer
purchase the films from the plaintiff, thus reducing his com-
pany’s profits. Id. at 1308. In support of this claim, the
plaintiff submitted several declarations and affidavits detail-
ing specific instances in which potential customers declined to
take the films because of the classification. See id. The
court found these factual assertions to be sufficient to estab-
lish harm that was attributable to the Government’s action.
See id. at 1308-09; see also Motor & Equip. Mfrs. Ass’n v.
Nichols, 142 F.3d 449, 457-58 (D.C. Cir. 1998) (finding that
the petitioner had standing to challenge government action
based on the independent conduct of third parties where
evidence demonstrated that the challenged action ‘‘resulted in
an almost unanimous decision’’ by those third parties to take
action that harmed the petitioner); Competitive Enter. Inst.
v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 113-18
(D.C. Cir. 1990) (finding ‘‘overwhelming evidence’’ in the
administrative record to support a conclusion that third par-
ties’ decisions were not substantially independent of the chal-
lenged government action and that those third parties were
likely to alter their behavior in response to favorable judicial
action).
18
Appellants’ reliance in this case on the possibility that their
members may have ‘‘better odds’’ of retaining their desired
wrestling programs plainly falls far short of the mark set by
Tozzi and other such cases. The cases on which appellants
rely require ‘‘formidable evidence’’ of causation, see Freedom
Republicans, 13 F.3d at 418 (distinguishing Women’s Equity
Action League v. Cavazos, 879 F.2d 880 (D.C. Cir. 1989)).
With such evidence, the court is easily able to discern re-
dressability. There is no such evidence in this case.
While our discussion thus far has emphasized the lack of
redressability in appellants’ complaint, appellants’ submis-
sions similarly fail to demonstrate that causation is so clear
that redressability inexorably follows. For example, appel-
lants’ amended complaint cited a press release in which
Bucknell University announced the elimination of its men’s
wrestling team – some 22 years after the adoption of the
Three-Part Test – and cited gender proportionality as one
reason for its decision. See Am. Compl. ¶ 50, J.A. 27. That
same press release, however, also cites the absence of league
sponsorship for wrestling, budgetary concerns, and the need
to balance the athletic program with other University priori-
ties as other factors contributing to the decision. See Buck-
nell Univ. News Release (May 2, 2001), J.A. 573-78.
Appellants also rely on a report issued by the General
Accounting Office (‘‘GAO’’) in March 2001, discussing the
experiences of four-year colleges in adding and discontinuing
men’s and women’s athletic teams between 1981 and 1999.
See GEN. ACCOUNTING OFFICE, INTERCOLLEGIATE ATHLETICS:
FOUR-YEAR COLLEGES’ EXPERIENCES ADDING AND DISCONTINUING
TEAMS (2001), reprinted in J.A. 366-81. This report does not
advance appellants’ case. First, although the GAO found
evidence that numerous men’s athletic teams were eliminated
over the period covered in the study – 519 teams discontinued
between the 1981-82 and 1998-99 academic years, to be
precise – the GAO also found that even more new men’s
teams were created in that same time-frame (555 men’s teams
between the 1981-82 and 1998-99 years). See id. at 13, J.A.
372. What is more telling, however, is that the GAO’s
discussion of the role that gender equity concerns played in
19
schools’ decisions to add or eliminate teams, upon which
appellants rely heavily, is utterly inconclusive as to whether
the Three-Part Test caused the elimination of any men’s
athletic teams. The GAO notes that a majority of surveyed
schools cited ‘‘gender equity considerations’’ as an influential
factor in their decisions to discontinue men’s teams. Id. at
20, J.A. 379. The report does not define ‘‘gender equity
concerns.’’ We do not know, on the basis of this report,
whether these concerns are self-imposed or legally required.
To the extent they reflect legal requirements, we do not know
whether they refer to the Three-Part Test or to Title IX and
the 1975 Regulations, which appellants do not challenge.
Finally, the GAO also found that several other factors also
contributed to schools’ decisions as much or more than ‘‘gen-
der equity considerations,’’ including levels of student interest
and limits on funding and other resources. See id.
Recently, in Crete Carrier Corp. v. Environmental Protec-
tion Agency, 363 F.3d 490 (D.C. Cir. 2004), operators of five
large-haul truck fleets challenged the Environmental Protec-
tion Agency’s refusal to reconsider the 2004 Standard for
nitrous oxide and nonmethane hydrocarbon emissions from
‘‘ ‘heavy heavy-duty’ ’’ diesel engines. Because the trucking
companies failed to show that their injury was fairly traceable
to the 2004 Standard, the court dismissed their petition for
lack of standing under Article III. In reaching this conclu-
sion, the court held:
The Trucking Companies offer only assertions, not
facts, to support their claims about the likely re-
sponse of engine manufacturers to repeal of the 2004
Standard. That will not do. Speculative and unsup-
ported assumptions regarding the future actions of
third-party market participants are insufficient to
establish Article III standing. Without actual evi-
dence of how engine manufacturers would respond
to relaxation or rescission of the 2004 Standard –
and the Trucking Companies have proffered none –
we can not ‘‘wade into this morass of marketplace
analys[i]s,’’ and emerge with the conclusion the en-
20
gine manufacturers would revert to producing pre-
October 2002 engines.
Id. at 494 (internal citations omitted). Appellants in this case
face the same problem. They have offered nothing but
‘‘unadorned speculation’’ to suggest that the schools covered
by Title IX would change their decisions if appellants were to
prevail in this case.
Tozzi and Block offer no solace for appellants, for causation
in those cases was clear. There is nothing in Tozzi and Block
indicating that the third parties whose conduct injured the
plaintiffs would have had reason to continue their injurious
conduct unaltered in the absence of the challenged govern-
ment action. In this case, by contrast, the continued vitality
of Title IX itself and the 1975 Regulations means that schools
must continue to take gender equity into account when de-
signing their athletic programs. And appellants have offered
nothing to indicate that the schools will act any differently
than they have in the past regarding decisions to comply with
Title IX.
The case law makes clear that one need not adopt the view
that a challenged government policy is totally ineffectual to
find that the likelihood of redress is too speculative to confer
standing upon a plaintiff. Surely, in Simon, it would not have
been implausible to hypothesize that the potential loss of a
valuable tax exemption might affect hospitals’ decisions re-
garding treatment of the indigent. Indeed, the Court accept-
ed the plaintiffs’ assertion in that case that the challenged
IRS tax policy encouraged hospitals to provide fewer services
to indigents. See Simon, 426 U.S. at 42 n.23. Similarly, in
Freedom Republicans, it would not have been beyond the
pale to assume that the Republican Party might alter its
convention policies if it faced termination of its substantial
public funding, and the court accordingly acknowledged that
the Party ‘‘would inevitably face a problem if its funding, but
not that of the Democrats, were to be withdrawn.’’ Freedom
Republicans, 13 F.3d at 419. Abstract theory and conjecture
are not enough to support standing, however. The Supreme
Court has repeatedly rejected the notion that a finding of
21
standing may be based on such ‘‘unadorned speculation.’’
Simon, 426 U.S. at 44.
In sum, appellants’ allegations of causation are far from
persuasive. If causation were the only issue in this case,
appellants’ proffers might be adequate to survive a motion to
dismiss. The problem here is that appellants have failed
completely to satisfy the redressability prong of Article III
standing, for there is nothing to support appellants’ claim that
a favorable ruling would alter the schools’ conduct. To
survive a motion to dismiss, a plaintiff ‘‘must allege facts from
which it reasonably could be inferred that, absent the [chal-
lenged policy], there is a substantial probability that TTT if
the court affords the relief requested, the asserted [injury]
will be removed.’’ Warth, 422 U.S. at 504. Appellants’
attempts to show redressability are based on nothing but
‘‘unadorned speculation.’’
To avoid these difficulties, plaintiffs turn to the ‘‘unequal
footing’’ theory of standing underlying the Supreme Court’s
decisions in Gratz v. Bollinger, 123 S. Ct. 2411, 2422-23
(2003), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
210-12 (1995). Under the holdings of these decisions, when a
plaintiff challenges a competitive process, such as university
admissions or contract bidding, on the grounds that discrimi-
nation in the process prevents the plaintiff from competing on
equal footing, the plaintiff need not demonstrate that, but for
the discrimination, he would have gained admission to the
university or won the contract. See Gratz, 123 S. Ct. at 2423;
Adarand, 515 U.S. at 211. Rather, a plaintiff obtains redress
in such a case because a favorable court decision eliminates
the discrimination that tainted the process and permits com-
petition on an equal basis.
These ‘‘unequal footing’’ cases are inapposite here. In both
Gratz and Adarand, the challenged policies directly injured
the plaintiffs, without any intervening, third-party decision
maker. Accordingly, these cases do not resolve the difficul-
ties appellants face as a result of the role of third parties in
causing their alleged injuries. In this case, by contrast, it is
purely speculative whether a decision in appellants’ favor
22
would alter the process by which schools determine whether
to field certain sports teams. Even if the court invalidated
the Department’s Three-Part Test, schools might neverthe-
less continue to eliminate or cap men’s wrestling teams in
order to comply with Title IX or the 1975 Regulations, or for
some other unrelated reason. Save for their speculation
about ‘‘better odds,’’ appellants would be no better off than
they are under the Department’s current policies.
Appellants’ remaining theory of standing likewise lacks
merit. Appellants claim that the regulations compel their
member coaches and athletic directors to act as ‘‘involuntary
participants’’ in illegal discrimination. An ‘‘involuntary par-
ticipant,’’ however, has standing only to the extent that the
victims of the alleged discrimination themselves have stand-
ing. See Fraternal Order of Police v. United States, 152 F.3d
998, 1002 (D.C. Cir. 1998) (‘‘[W]here a person is effectively
used by the government to implement a discriminatory
scheme, he may TTT attack that scheme by raising a third
party’s constitutional rights.’’) (internal quotation marks and
citations omitted); see also Lutheran Church-Missouri Syn-
od v. FCC, 141 F.3d 344, 350 (D.C. Cir. 1998). As we have
discussed at length, the alleged victims of the alleged discrim-
ination – i.e., the male student-athletes and coaches that
appellants represent – lack standing in their own right. The
‘‘involuntary participant’’ theory cannot confer standing upon
appellants that these student-athletes and coaches do not
independently possess.
As a final matter, the District Court did not abuse its
discretion in denying appellants’ request for leave to amend
their complaint a second time, because none of the allegations
in the proffered second amended complaint supply the miss-
ing elements of appellants’ standing. The court of appeals
reviews a district court’s denial of a motion for leave to
amend for abuse of discretion, ‘‘requiring only that the court
base its ruling on a valid ground.’’ James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). While leave to
amend ‘‘shall be freely given when justice so requires,’’ FED.
R. CIV. P. 15(a), a district court has discretion to deny a
motion to amend on grounds of futility where the proposed
23
pleading would not survive a motion to dismiss, see James
Madison Ltd., 82 F.3d at 1099.
Here, as the District Court found, the proposed amend-
ment would be futile, because none of the allegations in the
second amended complaint suffice to demonstrate appellants’
standing. The inclusion of the Secretary of Education and
the Assistant Secretary for Civil Rights as defendants in their
official capacities adds nothing to appellants’ assertion of
standing. The addition of unspecified educational institutions
as members of the NWCA likewise does not alter the analy-
sis. While a federally funded school might, in an appropriate
case, have standing in its own right to challenge the Depart-
ment’s regulations, appellants’ second amended complaint
does not allege with any specificity how any particular mem-
ber school has been injured by the regulations. See Second
Am. Compl. ¶¶ 4, 63-64, reprinted in J.A. 538, 552. Because
the proposed pleading would not survive a motion to dismiss
for lack of standing, the District Court did not abuse its
discretion in denying as futile appellants’ motion for leave to
amend their complaint. See James Madison Ltd., 82 F.3d at
1099.
Appellants have no Article III standing. We therefore
affirm the District Court’s dismissal of appellants’ claims for
lack of jurisdiction.
B. Adequate Remedy
In the alternative, even if appellants had standing to pursue
these claims, the availability of a private cause of action
directly against universities that discriminate in violation of
Title IX constitutes an adequate remedy that bars appellants’
case. Section 704 of the APA subjects to judicial review
‘‘[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a
court.’’ 5 U.S.C. § 704 (2000). In Cannon v. University of
Chicago, 441 U.S. 677 (1979), the Supreme Court held that
plaintiffs have a private cause of action for sex discrimination
under Title IX against universities.
Following Cannon, in Washington Legal Foundation v.
Alexander, 984 F.2d 483 (D.C. Cir. 1993), this court consid-
ered a challenge to the Department’s implementation of Title
24
VI of the Civil Rights Act of 1964. The plaintiffs in that case
asserted an APA cause of action to compel the Department to
enforce Title VI against universities that allegedly offered
certain scholarships only to minority students. See id. at 486.
Applying the Title IX holding of Cannon in the parallel
regime of Title VI, the court held that plaintiffs’ alternative
remedy – proceeding directly against the individual universi-
ties – precluded any suit against the Department under the
APA. See id. Under Washington Legal Foundation, appel-
lants’ claims against the Department are plainly barred. See
also Women’s Equity Action League v. Cavazos, 906 F.2d
742, 750-51 (D.C. Cir. 1990); Council of and for the Blind v.
Regan, 709 F.2d 1521, 1531-33 (D.C. Cir. 1983) (en banc).
Appellants argue that the Supreme Court’s decision in
Alexander v. Sandoval, 532 U.S. 275 (2001), alters this result.
We disagree. Sandoval held that private individuals have no
implied cause of action to enforce disparate-impact regula-
tions promulgated under Title VI of the Civil Rights Act,
which prohibits only intentional discrimination. See id. at
278-93. In a notably strained argument, appellants claim that
Sandoval effectively eliminates the implied cause of action,
recognized in Cannon, to enforce the prohibition on inten-
tional discrimination that derived from the statute itself.
Appellants thus contend that they no longer have any cause
of action against the universities, and, consequently, there is
no alternate remedy precluding their suit under the APA.
Sandoval does not purport to overrule Cannon’s allowance
of a cause of action to enforce the statutory prohibition
against intentional discrimination under Title IX. Thus, the
cause of action recognized in Cannon remains viable. See id.
at 279-81. That is fatal to appellants’ claims here. In this
case, appellants do not seek to enforce disparate-impact re-
quirements that go further than the facial requirements of
the statute itself, as was the posture in Sandoval. Rather, to
the extent that they view the Three-Part Test as embodying a
disparate-impact requirement, they seek to eliminate that
policy as inconsistent with the statute’s ban on intentional
discrimination. In other words, the only policy appellants
25
wish to enforce in this case is the prohibition against inten-
tional discrimination and the equal opportunity requirements
found in Title IX and the 1975 Regulations. Sandoval explic-
itly recognized in its discussion of Cannon that such a cause
of action against the universities remains available to appel-
lants. See id.
5 U.S.C. § 704 says that a cause of action may arise under
the APA for ‘‘[a]gency action made reviewable by statute and
final agency action for which there is no other adequate
remedy in a court.’’ Seeking to avoid the ‘‘adequate remedy’’
limitation of § 704, appellants argue that the Department’s
interpretive policies constitute ‘‘[a]gency action made reviewa-
ble by statute.’’ This argument is plainly foreclosed by the
court’s decision in Washington Legal Foundation. See 984
F.2d at 486. Appellants in Washington Legal Foundation
contended that they had an APA cause of action against the
Department of Education because the Government failed to
enforce Title VI against schools that reserved scholarship
funds solely for minority students. The court held that
appellants’ APA cause of action was barred by § 704, because
of the availability of an adequate alternative remedy in the
form of an implied right of action under Title VI. Id. at 486.
In this case, as in Washington Legal Foundation, there is
no legislation pursuant to which agency actions under Title
IX are made reviewable by statute. The reference to agency
actions ‘‘made reviewable by statute’’ in § 704 relates to
statutory provisions other than the APA that govern judicial
review of those actions. When pressed, appellants could
point to no such provisions that apply in this case. Therefore,
even assuming, arguendo, that appellants could demonstrate
standing, the ‘‘adequate remedy’’ provision under § 704 would
still bar their APA claim. See id. at 486.
Appellants next attempt to evade the limitation in § 704 by
advancing assorted non-statutory causes of action, which they
variously characterize as an ultra vires claim, an equitable
claim, or a claim in the style of Leedom v. Kyne, 358 U.S. 184
(1958). Without delving into their particulars, we find that
these alternatives fail. Even under these theories, appellants
26
must depend on the waiver of sovereign immunity in § 702 of
the APA, which applies to any suit, whether advanced under
the APA or not. See Chamber of Commerce v. Reich, 74 F.3d
1322, 1328 (D.C. Cir. 1996) (‘‘The APA’s waiver of sovereign
immunity applies to any suit whether under the APA or
not.’’). However, the waiver of sovereign immunity under
§ 702 is limited by the ‘‘adequate remedy’’ bar of § 704. See
Transohio Sav. Bank v. Dir., Office of Thrift Supervision,
967 F.2d 598, 607 (D.C. Cir. 1992) (‘‘The APA excludes from
its waiver of sovereign immunity TTT claims for which an
adequate remedy is available elsewhere.’’). The availability of
a private cause of action under Title IX directly against the
universities thus bars appellants’ assertion of non-APA causes
of action, because there is no waiver of sovereign immunity
where appellants have an adequate alternative remedy in
court.
Appellants also argue that a suit against a university that
eliminates its men’s wrestling team cannot provide an ‘‘ade-
quate remedy’’ for the alleged unlawfulness of the Depart-
ment’s enforcement policies. In a suit against a university,
they contend, they would not be able to air their challenges to
the Three-Part Test, particularly their claim that the Depart-
ment has abdicated its duty to enforce Title IX. Again,
however, appellants cannot escape the import of our holding
in Washington Legal Foundation, which rejected a similar
argument. See 984 F.2d at 486-88. As that case held, even if
the ‘‘adequate remedy’’ limitation were not an obstacle, no
abdication claim is available where appellants do not allege
that the Department has continued to fund an institution
specifically found to be in violation of Title IX. See id. at 487-
88 (distinguishing Adams v. Richardson, 480 F.2d 1159 (D.C.
Cir. 1973)); see also Ass’n of Civilian Technicians v. FLRA,
283 F.3d 339, 344 (D.C. Cir. 2002). Here, appellants make no
such allegations.
In any event, the experience in our sister circuits demon-
strates that challenges to the lawfulness of the Department’s
policies in fact may be aired in a suit against a university, to
the extent that the defendant university attempts to justify
its actions by reference to those policies. See, e.g., Neal v.
27
Bd. of Trs. of the Cal. State Univs., 198 F.3d 763, 766-73 (9th
Cir. 1999); Kelley v. Bd. of Trs., 35 F.3d 265, 270-72 (7th Cir.
1994); see also Cohen v. Brown Univ., 991 F.2d 888, 899-901
(1st Cir. 1993). In these and other cases, parties have had
the opportunity to litigate the propriety of the Department’s
Three-Part Test under the Constitution, Title IX, the 1975
Regulations, and principles of administrative law. Our hold-
ing today thus does not prevent appellants from obtaining
review of their claims on the merits, when raised in a
judicially reviewable case or controversy.
Appellants finally contend that a suit against a university is
an inadequate alternative because it would not permit them to
obtain a judicial order compelling the Department to initiate a
new rulemaking to replace the Three-Part Test. As we noted
in our discussion of standing, however, the Three-Part Test is
an interpretive guideline that the Department was never
obligated to issue in the first place. Appellants again fail to
point to any authority suggesting that the Department would
be required to develop a new interpretive rule in the event
the court invalidated the Three-Part Test.
Accordingly, we hold that, even if appellants had standing
to challenge the Department’s enforcement policy, their case
would be barred by the ‘‘adequate remedy’’ limitation of
§ 704 of the APA.
C. Petition to Repeal or Amend
Finally, we affirm the decision of the District Court reject-
ing appellants’ claim that the Department unlawfully denied
NWCA’s petition to amend or repeal the Three-Part Test.
Section 553(e) of the APA requires agencies to give interested
parties the right to petition for the issuance, amendment, or
repeal of a rule. See 5 U.S.C. § 553(e) (2000). Section 555(e)
further provides that an agency shall give prompt notice and
a brief explanation of the grounds for the denial of such a
petition. See 5 U.S.C. § 555(e). In October 1995, after the
Department solicited comments on its proposed clarification
of the Three-Part Test, appellant NWCA submitted two
letters to the Department expressing its dissatisfaction with
the Three-Part Test. See J.A. 160-66. The letters requested
28
no specific action, but stated that if the Department did not
‘‘clarify [its policies] in a manner which permits male sports
programs and athletes to survive, [NWCA] will be forced to
seek additional hearings and remedial legislation.’’ Letter
from T.J. Kerr, President, NWCA, to Norma V. Cant´, u
Assistant Secretary for Civil Rights, Department of Edu-
cation, at 5 (Oct. 20, 1995), reprinted in J.A. 164. Appellants
contend that these letters constituted a petition for repeal or
amendment of the Three-Part Test and that the 1996 Clarifi-
cation effectively denied that petition without explanation.
Leaving aside any difficulties as to whether the Three-Part
Test is the type of policy subject to the APA’s petition
requirements, NWCA’s 1995 letters simply cannot be con-
strued as a petition for repeal or amendment. The letters
described problems NWCA perceived in the existing regula-
tory scheme under Title IX, but requested no particular
action by the Department. We therefore agree with the
Department that it was under no obligation to treat the
letters as a valid petition. Indeed, the District Court noted
that appellants subsequently filed a proper petition that
remained pending before the Department when the District
Court issued its decision, apparently conceding the infirmity
of their previous correspondence. See Nat’l Wrestling
Coaches Ass’n, 263 F. Supp. 2d at 128.
Furthermore, the Department’s 1995 solicitation for com-
ments clearly confined its request to whether the proposed
clarification of the Three-Part Test ‘‘provide[d] the appropri-
ate clarity in areas that have generated questions.’’ See
Clarification of Intercollegiate Athletics Policy Guidance:
The Three-Part Test, at 1 (Sep. 20, 1995), transmitted by
Letter from Norma V. Cant´, Assistant Secretary for Civil
u
Rights, Department of Education, reprinted in J.A. 131.
And, as the 1996 Clarification reiterated, the Department did
not intend the 1995-96 proceeding to serve as a forum for
reconsideration of the Three-Part Test. See 1996 Clarifica-
tion, J.A. 143. In light of the Department’s broad discretion
to manage its docket, see Edison Elec. Inst. v. ICC, 969 F.2d
1221, 1230 (D.C. Cir. 1992), and the ‘‘quite limited’’ scope of
our review of an agency’s decision whether to repeal a rule,
29
see Nat’l Mining Ass’n v. United States Dep’t of the Interior,
70 F.3d 1345, 1352 (D.C. Cir. 1995), it cannot be said that the
Department failed to provide an adequate explanation for its
disposition of NWCA’s 1995 letters.
In sum, appellants did not petition for repeal or amend-
ment of the Three-Part Test pursuant to the Department’s
solicitation of comments on its proposed clarification of the
test. Nor would such a petition have been within the scope of
the 1995-96 proceeding. The proceeding was undertaken by
the Department solely to determine whether the proposed
clarification of the Three-Part Test provided clarity in areas
that had generated questions, not as a forum for reconsidera-
tion of the Three-Part Test. Appellants’ subsequent petition
for repeal or amendment of the Three-Part Test is still
pending and thus is not ripe for review in this litigation.
III. CONCLUSION
We affirm on the merits the District Court’s rejection of
appellants’ claim that the Department unlawfully denied their
petition to amend or repeal the Three-Part Test. As to their
remaining claims, we hold that appellants lack standing under
Article III. Finally, even assuming, arguendo, that the re-
quirements of Article III standing have been met, appellants’
case would be barred by the ‘‘adequate remedy’’ limitation of
§ 704 of the APA.
1
WILLIAMS, Senior Circuit Judge, dissenting: The majority
finds that plaintiffs do not have standing to maintain their
suit. Because I believe our precedents require a different
result, I dissent.
* * *
Plaintiffs consist of two types of associations—national
associations of persons (including coaches) with interests in
wrestling or other college sports, and associations of alumni,
student athletes and others committed to advancing wrestling
at specific universities (Bucknell, Marquette and Yale). Their
complaint is that the defendant Department of Education has
unlawfully enforced Title IX of the Education Amendments of
1972, 20 U.S.C. §§ 1681–1688, in a way that has caused a
reduction in opportunities for participation in men’s sports,
especially wrestling. They say that the Department has
pressured colleges to achieve women’s participation in sports
proportional to women’s enrollment, without regard to vary-
ing levels of interest or skill. As colleges have competing
demands on their resources, cutting men’s teams is one of the
obvious ways for them to meet the Department’s measure of
proportionality. And cut they have. Plaintiffs cite a report
by the General Accounting Office, ‘‘Intercollegiate Athletics:
Four–Year Colleges’ Experience Adding and Discontinuing
Teams’’ (March 2001) (‘‘GAO Report’’), saying that schools
had cut 519 men’s teams between 1981–82 and 1998–99,
including 171 wrestling teams. GAO Report at 18. Of the
272 responding schools that had cut a men’s team in the
period 1992–93 to 1999–2000 (see id. at 33), 31% cited the
need to meet gender equity goals or requirements. Id. In
the face of these data, the district court found that plaintiffs
had failed to allege facts showing any causal connection
between the Department’s actions and the reduction in plain-
tiffs’ members’ coaching opportunities, and thus found them
without standing. This was error.
* * *
Plaintiffs point to two documents setting forth the Depart-
ment’s interpretation of Title IX: ‘‘Title IX of the Education
2
Amendments of 1972; a Policy Interpretation; Title IX and
Intercollegiate Athletics,’’ 44 Fed. Reg. 71,413 (December 11,
1979) (codified at 45 C.F.R. pt. 86) (the ‘‘1979 Policy Interpre-
tation’’), and a statement issued by the Assistant Secretary
for Civil Rights, ‘‘Clarification of Intercollegiate Athletics
Policy Guidance: The Three–Part Test’’ (January 16, 1996)
(the ‘‘1996 Clarification’’). The 1979 Interpretation sets forth
what has come to be known as the ‘‘Three–Part Test’’:
a. Compliance will be assessed in any one of the
following ways:
(1) Whether intercollegiate level participation opportu-
nities 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, wheth-
er 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 underrepre-
sented among intercollegiate athletes, and the institution
cannot show a history and continuing practice of program
expansion, as described above, whether it can be demon-
strated that the interests and abilities of the members of
that sex have been fully and effectively accommodated by
the present program.
1979 Interpretation, 44 Fed. Reg. at 71,418. At oral argu-
ment government counsel confirmed that, as the context
suggests, ‘‘underrepresented’’ as used in paragraphs (2) and
(3) means simply that women’s sports participation fell below
men’s as a proportion of enrollment. Plaintiffs say that,
especially with the 1996 Clarification, the Department has
made the enrollment proportionality ‘‘prong’’ of the test into a
‘‘safe harbor’’ for compliance, see January 16, 1996 letter of
Norma V. Cant´ at 2 (‘‘Cant´ letter’’) (explaining 1996 Clarifi-
u u
cation), and has ruled that it will count ‘‘actual athletes’’—not
unfilled spots on teams—when it assesses the ‘‘proportionality
3
of participation opportunities,’’ id. at 4. See First Amended
Complaint ¶ ¶ 44–45. The government at no point contends
that the legal provisions that plaintiffs do not challenge—Title
IX itself or the regulations antedating the 1979 Interpretation
or the 1996 Clarification, i.e., the regulations adopted in 1975,
44 Fed. Reg. 24,128 (June 4, 1975) (now codified at 34 C.F.R.
§ 106.41(a) (2003))—either mandate proportionality by refer-
ence to enrollment or create a safe harbor based on such
proportionality. (Such a claim would be a merits argument in
any event.)
Incurring Departmental displeasure under the Interpreta-
tion and the Clarification is not something an educational
institution would do lightly. The Department is empowered
to cut off all federal funds from non-complying colleges and
universities. See 20 U.S.C. § 1682 (authorizing each federal
department and agency that extends federal financial assis-
tance to any education program or activity to terminate
funding in order to effectuate the provisions of Title IX); id.
§ 1687 (defining ‘‘program or activity’’ to include ‘‘all the
operations of TTT (2)(A) a college, university, or other postsec-
ondary institution, or a public system of higher education’’);
45 C.F.R. § 86.2(g) (defining federal financial assistance); see
also 44 Fed. Reg. at 71,418–19 (‘‘When a recipient is found in
noncompliance and voluntary compliance attempts are unsuc-
cessful, the formal process leading to termination of Federal
assistance will be begun.’’). That gives the Department
substantial influence over college and university policies: fed-
eral support for postsecondary education totaled over $119
billion in 2000, well over 40% of the nearly $278 billion spent
by all postsecondary institutions that year. See National
Center for Education Statistics, Digest of Education Statis-
tics 2002 at Tables 343–46 and 363.
Plaintiffs claim that in implementing the Interpretation and
the Clarification the Department has ‘‘initiated hundreds of
administrative enforcement actions and investigations’’ and
‘‘negotiated settlements with such institutions that reduced
male participation opportunities.’’ First Amended Complaint
¶ 48. ‘‘As a direct and indirect result of [the Department’s]
unlawful Title IX policies, therefore, institutions have cut (i.e.,
4
eliminated) hundreds of men’s teams and have capped (i.e.,
arbitrarily limited) hundreds of men’s participation opportuni-
ties.’’ Id. They cite the GAO Report’s finding in support.
Id.
As the standing issue arose on a motion to dismiss, the
plaintiffs’ burden is simply to make the requisite allegations.
‘‘At the pleading stage, general factual allegations TTT may
suffice, for on a motion to dismiss we ‘presum[e] that general
allegations embrace those specific facts that are necessary to
support the claim.’ ’’ Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (citation omitted). See also Bennett v. Spear,
520 U.S. 154, 171 (1997) (calling burden of allegation at the
pleading stage ‘‘relatively modest’’); Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 260–61 (1977); Warth
v. Seldin, 422 U.S. 490, 501 (1975). Dismissal for want of
subject matter jurisdiction should occur only if ‘‘ ‘it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’ ’’
Empagran S.A. v. F. Hoffman–LaRoche, Ltd., 315 F.3d 338,
343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41,
45–46 (1957)). Interestingly, the leading cases in our circuit
finding standing on the basis of third parties’ response to
alleged excessive agency stringency, Block v. Meese, 793 F.2d
1303 (D.C. Cir. 1986) (Scalia, J.), and Tozzi v. United States
Dep’t of Health and Human Servs., 271 F.3d 301 (D.C. Cir.
2001), discussed below in detail, involved motions for sum-
mary judgment; despite the far more demanding standard
appropriate there, we found the requisite causality and re-
dressability.
The plaintiffs are all associations, and there is no question
(nor, so far as appears, any basis for questioning) that they
meet the requirements for associational standing other than
the disputed question of whether the members would have
standing to sue in their own right. Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)
(requiring that the interest advanced be germane to associa-
tion’s purpose and that neither the claim nor the relief would
need participation of individual members).
5
Two of the associations represent collegiate coaches. The
National Wrestling Coaches Association represents collegiate
wrestling coaches, and the College Sports Council represents
national collegiate coaches associations for men’s and wom-
en’s swimming, men’s and women’s track and field, men’s
wrestling and men’s gymnastics. First Amended Complaint
¶ ¶ 4, 8. The three college-specific associations represent
alumni and student athletes and the complaint alleges that
they have ‘‘participatory and spectator interests’’ in their
respective schools’ wrestling programs. Id. ¶ ¶ 5–7. With
respect to Bucknell, the complaint alleges that the members
of the association include ‘‘underclassmen on Bucknell’s 2001–
02 wrestling team who want to wrestle for Bucknell in the
2002–03, 2003–04, and 2004–05 academic years.’’ Id. ¶ 5; see
also Second Amended Complaint ¶ 5 (naming a specific Buck-
nell wrestler). While the plaintiffs’ allegations of redressabil-
ity—discussed below—may be insufficient as to the three
college-specific associations, compare Defenders of Wildlife,
504 U.S. at 564–67, the suit may proceed if any plaintiff has
standing, see, e.g., Community for Creative Non–Violence v.
Pierce, 814 F.2d 663, 666 (D.C. Cir. 1987), as I believe is true
for the coaches seeking to advance their professional and
economic interests.
Of the three familiar requirements for Article III stand-
ing—(1) a concrete, actual or imminent injury-in-fact, (2)
causation and (3) redressability, see Defenders of Wildlife,
504 U.S. at 560–61—any dispute over ‘‘injury’’ appears to
completely overlap the issue of causation. Thus the district
court, though finding the complaint defective as to causation
and redressability, also found that ‘‘it is conceivable that
coaches in particular potentially suffer a direct economic
harm through loss of employment if, as plaintiffs allege, the
challenged regulations lead educational institutions to cut
men’s teams.’’ National Wrestling Coaches Ass’n v. United
States Dep’t of Educ., 263 F. Supp. 2d 82, 106–07 (D.D.C.
2003) (‘‘NWCA’’). The deprecatory phrase ‘‘it is conceivable’’
foreshadows the court’s later decision on the two other re-
quirements, to which I now turn.
6
Causation
In finding that the plaintiffs had not met their burden on
causation, see NWCA, 263 F. Supp. 2d at 112–14, the district
court stressed that even in the absence of the Department’s
rules and enforcement policy an educational institution would
have discretion to eliminate men’s teams, id. at 112, 113.
Because of the presence of other factors in the institutions’
decisionmaking—such as resource distribution, competitive-
ness, and spectator interest—the district court concluded that
‘‘it cannot be held TTT that the Three Part Test and 1996
Clarification TTT so controls [sic] the conduct of third parties
as to confer standing on plaintiffs.’’ Id. at 114 (emphasis
added).
Despite use of the verb ‘‘control,’’ the district court recog-
nized that where an injury turns on a third party’s response
to government regulations, the law requires only that those
regulations have constituted a ‘‘substantial factor’’ in the third
party’s decisionmaking. See Community for Creative Non–
Violence, 814 F.2d at 669. See also Competitive Enter. Inst.
v. National Highway Traffic Safety Admin., 901 F.2d 107,
113 (D.C. Cir. 1990) (requiring ‘‘substantial likelihood of the
alleged causality’’). A factor can obviously play a substantial
role without ‘‘control[ling].’’ Compare Maj. Op. at 19 (reject-
ing causality because ‘‘other factors’’ contributed to the
schools’ decisions).
The complaint clearly alleges that the Department regula-
tions and policies represented a ‘‘substantial factor’’ in edu-
cational institutions’ decisions on the number and composition
of sports teams. Paragraph 48 of the First Amended Com-
plaint says that either as a direct result of the Department’s
enforcement action or in order to avoid becoming the target
of such action, educational institutions ‘‘have limited male
participation opportunities to comply with [the Department’s]
unlawful Title IX policies,’’ and that as a result of these
policies institutions ‘‘have cut (i.e., eliminated) hundreds of
men’s teams and have capped (i.e., arbitrarily limited) hun-
dreds of men’s participation opportunities.’’ The First
Amended Complaint (¶ ¶ 50–52) also specifically alleges that
7
wrestling teams at Bucknell, Marquette and Yale were elimi-
nated in order to comply with the Department’s Title IX
policies.
This explicit allegation of the institutions’ behavior and the
Department’s causal role is enough to reject the government’s
motion to dismiss under the principles laid out in the cases
cited above—Defenders of Wildlife, Warth v. Seldin and
Empagran. The majority’s repeated insistence that the
plaintiffs ‘‘demonstrate’’ the causal relation has no place in
the inquiry. Compare Maj. Op. at 3, 18.
In fact, however, plaintiffs added more, offering the GAO
Report as support. Summarizing extensive data gathering, it
said that of 272 schools that cut a men’s team, 83 (31%) cited
the need to meet gender equity goals or requirements for
their decision. GAO Report at 18. Among NCAA Division
I–A schools, a clear majority (54%) cited gender equity
considerations as a significant motivating factor in cutting a
men’s team. Id. at 20. The Report also lists changes in the
number of men’s teams between 1981–82 and 1998–99, includ-
ing: 171 fewer wrestling teams, 56 fewer gymnastics teams,
27 fewer outdoor track teams and 25 fewer swimming teams.
Id. at 13.
The majority notes that more men’s teams were created
than destroyed in the relevant period, see Maj. Op. at 18,
erroneously suggesting that the relevant benchmark is the
starting date. But the question is the effect of the Depart-
ment’s rules, so the proper benchmark is the expected growth
of men’s teams under a regime that did not demand enroll-
ment proportionality. See Competitive Enter. Inst. v. Na-
tional Highway Traffic Safety Admin., 956 F.2d 321, 326–27
(D.C. Cir. 1992).
That Bucknell and Marquette did not discard their wres-
tling teams until after the 1979 Interpretation had been in
effect for ‘‘decades,’’ see Maj. Op. at 13, proves little. The
Department issued the 1996 Clarification to provide schools
with ‘‘specific guidance about the [Department’s] existing
standards,’’ and limited it to a discussion of the Three–Part
Test because questions about that test comprised a majority
8
of those asked about Title IX compliance generally. See
Cant´ letter at 1. In fact, the rate of drops for male teams,
u
as a proportion of all drops, visibly accelerated after the
Clarification: In NCAA Division I, for example, male team
drops were 61% of the total in the years 1988–89 to 1995–96,
but grew to 76% in the years 1996–97 to 2001–02. NCAA
Sponsorship and Participation Report (1982–2002) at 177.
While it is true that the GAO Report does not define ‘‘gender
equity considerations,’’ Maj. Op. at 19, the timing is highly
suggestive; in any event, plaintiffs explicitly alleged that the
Department’s interpretation of Title IX caused the cuts, see
First Amended Complaint ¶ ¶ 48, 50–52, and that is all the
law requires at the pleading stage.
Because plaintiffs’ claim belongs to the class where an
agency’s alleged excess stringency is said to have substantial-
ly influenced third parties to make decisions injuring plain-
tiffs, the most obvious parallel cases are this court’s decisions
in Block v. Meese and Tozzi v. United States Department of
Health and Human Services. In these cases the causal role
was considerably less clear than here, yet we found standing.
In Block the Justice Department had classified three films
distributed by the plaintiffs as ‘‘political propaganda’’ under
the Foreign Agents Registration Act, a finding that required
the plaintiffs to make public disclosure of the names of
certain recipients and distributors of the films. 793 F.2d at
1307. Plaintiffs claimed that the publication of customers’
names would affect their profits, and on cross-motions for
summary judgment they submitted Block’s affidavit saying
that ‘‘[a]t least a dozen customers have specifically asked us
not to reveal their names,’’ and an affidavit of a library
association saying that being listed as a purveyor of political
propaganda ‘‘could cause problems for [the association] and
its members.’’ Id. at 1308. Although no customer or poten-
tial customer submitted any statement that the prospect of
publication had caused it to refrain from purchase or rental
on account of the agency action, or that it would do so, we
9
found standing.1 We saw the government’s conduct as
‘‘creat[ing] a disincentive’’ for plaintiffs’ potential customers
to acquire the films, damaging plaintiffs’ profits. Id. Assum-
ing that the disincentive worked through a ‘‘false impression,’’
we said that that made no difference. Id. at 1309. None of
the relevant third parties in Block actually said that it had
changed its conduct because of the government’s publication
of customers’ names.
Here we have 171 colleges or universities cutting men’s
wrestling teams and nearly 100 reporting that they cut men’s
teams for reasons of ‘‘gender equity.’’ To be sure, they did
not explicitly tell GAO that it was the Department’s enforce-
ment strategy that suddenly alerted them to the imperatives
of gender equity. But plaintiffs allege such a link, and on a
motion to dismiss that (rather plausible) allegation is enough.
In Tozzi the plaintiffs challenged an agency report that
shifted the chemical dioxin from the category of substances
‘‘reasonably anticipated to be’’ human carcinogens to the
category of ones ‘‘known’’ to be carcinogens. 271 F.3d at 303.
As in Block, the government argued that, even if the plaintiffs
were injured as a result of the change, the plaintiffs’ injury
was not fairly traceable to that decision. Id. at 308. The
government pointed out that the anti-dioxin movement pre-
dated the upgrade, and argued that pressure on companies to
reduce the use of dioxin-containing products would continue
whether or not dioxin continued to be listed as a known
human carcinogen. Id.
Despite these arguments, we found sufficient causation,
again on a motion for summary judgment. We noted that
Congress had intended the report to serve as the federal
government’s authoritative statement on the state of carcino-
gen research; that Oakland, Berkeley and San Francisco
passed anti-dioxin resolutions citing the agency’s preliminary
determination about dioxin; and that a member of the Board
1 This was in contrast to the public classification of the film,
with respect to which plaintiffs submitted a customer affidavit
saying that but for the designation it would have purchased a
specific film. Block, 793 F.2d at 1308.
10
of Scientific Counselors noted that the report was a very
important document. Id. at 309. On this basis we said we
had ‘‘little doubt’’ ‘‘that the dioxin upgrade will represent a
‘substantial factor’ in the decisions of state and local agencies
to regulate products containing dioxin or of healthcare compa-
nies to reduce or end purchases of [these products].’’ Id. ‘‘It
is not too speculative to conclude that the Report will injure
Brevet [a PVC-selling plaintiff] economically, even with the
presence of other causal factors.’’ Id.
Thus we found causation with little direct evidence. The
strongest was perhaps the fact that three cities in the Bay
area had referenced the Report in adopting anti-dioxin reso-
lutions; but these were unaccompanied by any statement that
any purchaser had heeded them, much less that the Report
had ‘‘control[led]’’ those cities’ recommendations or even been
a major inducement to their issuance. We were quite explicit
that third parties’ consideration of other factors did not
prevent a finding that the Report was likely to be a ‘‘substan-
tial factor’’ in anti-dioxin decisions. Id.
In our recent decision in Crete Carrier Corp. v. EPA, 363
F.3d 490 (D.C. Cir. 2004), we found no standing, but we
emphasized the special conditions. Buyers of the tractors for
tractor-trailers argued that a relatively stringent EPA engine
emission standard—the 2004 Standard—would increase
prices of such tractors. Under certain consent decrees, all
significant manufacturers were bound until January 1, 2005 to
produce engines meeting the 2004 Standard. We noted that
but for the consent decrees, finding causation between en-
forcement of the 2004 Standard and increased prices for
plaintiffs ‘‘would be the work of a minute.’’ Id. at 493.
Because of the consent decrees, however, any price relief for
plaintiffs depended on the manufacturers’ incurring the costs
of reversing their production methods to meet standards less
stringent than the 2004 Standard, even though they would
have almost immediately have to retool again to meet still
more stringent standards taking effect January 1, 2007. On
summary judgment we found that plaintiffs had offered no
evidence to support that scenario. Id. at 494. Plainly Crete
Carrier does not undermine the lesson of Block and Tozzi.
11
In rejecting plaintiffs’ claims as ‘‘purely speculative,’’ the
majority makes much of the Supreme Court’s decisions in
Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26 (1976), Allen v. Wright, 468 U.S. 737 (1984), and
Warth v. Seldin. But these cases in no way require that we
hold plaintiffs’ claim here to be too speculative; indeed, the
opinions suggest that plaintiffs there lost more for want of
proper pleading than for the theoretically speculative nature
of their claims. In Allen v. Wright, for example, there was no
talk of unduly speculative claims; rather, the plaintiffs simply
failed to make the proper allegations. See 468 U.S. at 758
(‘‘The diminished ability of respondents’ children to receive a
desegregated education would be fairly traceable to unlawful
IRS grants of tax exemptions only if there were enough
racially discriminatory private schools receiving tax exemp-
tions in respondents’ communities for withdrawal of those
exemptions to make an appreciable difference in public school
integration. Respondents have made no such allegation.’’).
And in Warth v. Seldin the Court said, ‘‘Petitioners must
allege facts from which it reasonably could be inferred that,
absent the respondents’ restrictive zoning practices, there is a
substantial probability that they would have been able to
purchase or lease in Penfield and that, if the court affords the
relief requested, the asserted inability of petitioners will be
removed. We find the record devoid of the necessary allega-
tions.’’ 422 U.S. at 504 (citation omitted).
Similarly, in Simon the plaintiffs alleged only that an IRS
Revenue Ruling had ‘‘encouraged’’ hospitals to deny service
to indigents; it left implicit the corollary that plaintiffs’
requested relief would ‘‘discourage’’ hospitals from denying
service. 426 U.S. at 42. Presumably, had the plaintiffs
alleged a direct causal connection between the IRS Revenue
Ruling, hospitals’ decisionmaking and plaintiffs’ access to
hospitals, the Court would not have found plaintiffs’ claims to
be too speculative. Compare Simon, 426 U.S. at 42 (‘‘[I]t
does not follow from the allegation and its corollary that the
denial of access to hospital services in fact results from
petitioners’ new Ruling’’ (emphasis added)), with First
Amended Complaint ¶ 48 (‘‘As a direct and indirect result of
12
[the Department’s] unlawful Title IX policies, therefore, insti-
tutions have cut (i.e., eliminated) hundreds of men’s teams’’
(emphasis added)). As this litigation progresses, the plain-
tiffs would obviously be obliged to produce evidence to sub-
stantiate their claims on summary judgment, and, as to
controverted material issues, at trial. See, e.g., Defenders of
Wildlife, 504 U.S. at 561; Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002) (notice pleading standard relies on sum-
mary judgment motions to define disputed issues of fact and
dispose of unmeritorious claims); The Freedom Republicans,
Inc. v. Federal Election Comm’n, 13 F.3d 412, 418 (D.C. Cir.
1994) (rejecting plaintiffs’ claims as unduly speculative be-
cause plaintiffs had not produced enough evidence on sum-
mary judgment). Here the only question is whether the
plaintiffs properly pleaded a causal connection between their
injury and the Department’s regulations, which they have.
Simon, Allen v. Wright and Warth v. Seldin simply instruct
the court to be cautious in making an inferential leap when
plaintiffs have not offered specific allegations spelling out the
requisite steps of the causal chain.
The majority seizes on a phrase of plaintiffs’ counsel at oral
argument—the view that relief would afford ‘‘better odds’’ for
improved retention or restoration of men’s teams, Maj. Op. at
13, 18, and deprecates ‘‘better odds’’ as insufficient or too
speculative, id. at 9. And it observes that plaintiffs do not
claim that any particular school ‘‘necessarily would forego
elimination of a wrestling team TTT in the absence of these
interpretive rules.’’ Id. at 13 (emphasis added). The implica-
tion—that what is not certain is too speculative—reflects a
view of the law at odds with our tests. First, the language of
counsel at oral argument is no basis for our evaluation of
causal links. Second, under our ‘‘substantial factor’’ test,
Community for Creative Non–Violence, 814 F.2d at 669, we
require simply ‘‘substantial likelihood of the alleged causali-
ty.’’ Competitive Enter. Inst., 901 F.2d at 113. This is a
probabilistic test, not susceptible of ready quantification, but
plainly not requiring certainty.
Here plaintiffs’ allegations indicate high probability. They
directly allege that the Department’s Title IX interpretations
13
and its enforcement policies, including the threat of withhold-
ing federal funds (meaning all forms of federal aid, no matter
how unrelated to college athletics, see 20 U.S.C. § 1682), have
caused educational institutions to cut men’s athletic teams.
Although the context is not summary judgment, they back it
up with the highly suggestive data of the GAO Report. The
strength of the causal inference seems at least as compelling
as what we found sufficient in Block and Tozzi on summary
judgment.
Redressability
Having found that plaintiffs sufficiently alleged a causal
connection between their injury and the Department’s regula-
tions, it would be unusual to conclude that plaintiffs’ injuries
cannot be redressed by elimination of the illegal regulations.
Both ‘‘inquiries require an assessment of how third parties
will respond to the agency’s action.’’ Community for Crea-
tive Non–Violence, 814 F.2d at 670; see also Allen v. Wright,
468 U.S. at 753 n.19 (‘‘To the extent there is a difference
[between causation and redressability], it is that the former
examines the causal connection between the assertedly unlaw-
ful conduct and the alleged injury, whereas the latter exam-
ines the causal connection between the alleged injury and the
judicial relief requested.’’). Even where, as here, the plain-
tiffs’ requested remedy is a new rulemaking, see First
Amended Complaint ¶ 99(B)(iii), we do not assess redressabil-
ity on the basis of some finely calibrated estimate of what the
new rule will be. ‘‘Where an agency rule causes the injury,
the redressability requirement may be satisfied as well by
vacating the challenged rule and giving the aggrieved party
the opportunity to participate in a new rulemaking the results
of which might be more favorable to it.’’ America’s Cmty.
Bankers v. FDIC, 200 F.3d 822, 828–29 (D.C. Cir. 2000); see
also Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458
(D.C. Cir. 1998).
Plaintiffs’ redressability pleadings are straightforward.
They ask for an order remanding the current rules to the
Department and requiring a rulemaking to amend them so
that they will require institutions, to the extent that they
14
make any gender-conscious decisions on athletic opportuni-
ties, ‘‘to use interest and ability—not enrollment—as the
relevant population.’’ First Amended Complaint ¶ 99(A)(iii),
(B)(iii). They explicitly allege that grant of the relief request-
ed ‘‘will redress the injuries alleged herein.’’ Id. ¶ 53. Given
the allegation that the Department’s actions were the cause of
the injury, it follows logically that removal of that cause
would supply redress.
The government’s arguments add nothing to what is al-
ready implicit in the discussion of causation. Indeed, it
seems to misunderstand what is required of plaintiffs here,
arguing that the plaintiffs must show that different Depart-
ment regulations would cause a school that has eliminated a
team to reinstitute that team. Appellee’s Brief at 24. While
such an allegation may be necessary for the three college-
specific associations to maintain their claims,2 the other plain-
tiff associations need neither to demonstrate nor even allege
such a direct result. They have plainly alleged that the
alleged wrongdoing is ongoing and continues to affect edu-
cational institutions’ decisionmaking. See First Amended
Complaint ¶ 48 (the Department’s ‘‘unlawful Title IX policies
directly and indirectly have reduced (and continue to limit)
participation opportunities for male athletes.’’). Under these
circumstances, the redressability requirement is satisfied if
there can be ‘‘a sanction that effectively abates that conduct
and prevents its recurrence.’’ Laidlaw, 528 U.S. at 185–86.
2 Although the plaintiffs submitted a press release directly
linking the elimination of Bucknell’s wrestling team to the Depart-
ment’s Title IX policies and regulations, see Bucknell News Release
(May 2, 2001) (stating that Bucknell cut men’s wrestling team to
attempt to ‘‘keep[ ] women represented in its varsity programs to
the same degree they are represented in the student body’’),
nowhere in the complaint did they allege that a change in the
regulations would cause Bucknell, Marquette or Yale either to
rethink cuts already made or to redress in some other way the
injuries suffered by student athletes and alumni at those schools.
Thus, as to the college-specific associations, it appears that this may
be the rare circumstance where the allegations are sufficient to
establish causation but not redressability.
15
Similarly, the government faults the plaintiffs for failing to
allege that any member coaches are employed by educational
institutions that ‘‘have declared any intention now or in the
future to initiate the cutting or capping of athletic teams,’’
Appellee’s Brief at 24, and it suggests that the plaintiffs’
complaint should have listed the schools at which their mem-
bers coach, id. at 24–25. But under ‘‘notice pleading,’’ a court
on a motion to dismiss must ‘‘presume[e] that general allega-
tions embrace those specific facts that are necessary to
support the claim.’’ Defenders of Wildlife, 504 U.S. at 561
(alteration in original); see also Rule 8(a)(2), Fed. R. Civ.
Pro.; Swierkiewicz, 534 U.S. at 512; Bennett, 520 U.S. at 168
(‘‘Given petitioners’ allegation TTT it is easy to presume
specific facts under which petitioners will be injured’’). Given
that the plaintiffs have alleged both that they are national
organizations representing coaches in a number of men’s
sports, see First Amended Complaint ¶ ¶ 4, 8, and that they
are suffering ongoing injury due to the Department’s regula-
tions, id. ¶ 48, we must infer that these allegations embrace
the specific facts necessary to support plaintiffs’ claims, i.e.,
that plaintiffs’ member coaches are employed by educational
institutions that would, in the event of a Department retreat,
be either substantially less likely to cut or cap men’s teams in
the future to comply with the Department’s Title IX regula-
tions and policies, or substantially more likely to support
increases in men’s sports opportunities. The proper compari-
son, of course, is between men’s sports opportunities under
the current regime and men’s sports opportunities under a
future regime in which the Department’s enrollment propor-
tionality requirement has been removed. See Competitive
Enter. Inst. v. National Highway Traffic Safety Admin., 956
F.2d at 326–27. It is of no consequence that the Department
has no obligation to proceed in the future by rulemaking,
compare Maj. Op. at 14, so long as it is substantively barred
from pursuit of enrollment proportionality, in disregard of
varying levels of interest and skill.
* * *
As an alternative holding, the majority finds the plaintiffs’
suit unreviewable under the Administrative Procedure Act, 5
16
U.S.C. §§ 701–706, because it believes the plaintiffs may
achieve an adequate remedy by suing individual colleges and
universities directly. See generally id. § 704 (limiting judi-
cial review to ‘‘final agency action for which there is no other
adequate remedy in a court’’). I believe the majority’s rea-
soning is mistaken here as well.
As the Supreme Court explained in Bowen v. Massachu-
setts, § 704 is to be read narrowly so as not ‘‘to defeat the
central purpose of providing a broad spectrum of judicial
review of agency action.’’ 487 U.S. 879, 903–04 (1988); see
also Esch v. Yeutter, 876 F.2d 976, 982 (D.C. Cir. 1989). The
adequate remedy question is a practical one: would the
alternative remedy afford the same relief to plaintiffs as suit
under the APA? See, e.g., Women’s Equity Action League v.
Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990) (looking at
statutory remedies available to plaintiff in judging question of
adequacy); Council of and for the Blind v. Regan, 709 F.2d
1521, 1532 (D.C. Cir. 1983) (comparing remedies available
under APA and the Revenue Sharing Act).
In this case, the remedy sought by plaintiffs is a new
rulemaking by the Department of Education, First Amended
Complaint ¶ 99(B)(iii), one that would eliminate enrollment
proportionality as a ‘‘safe harbor’’ for compliance with Title
IX, id. ¶ 99(A)(iii). The plaintiffs also seek to prohibit the
Department from ‘‘requiring or authorizing institutions to
engage in gender-conscious cutting or capping to meet a
disparate-impact standard.’’ Id. ¶ 99(A)(ii). Although the
plaintiffs may sue individual institutions directly to redress
discrimination proscribed by Title IX, see Cannon v. Univer-
sity of Chicago, 441 U.S. 677 (1979), such a suit would not
achieve plaintiffs’ desired remedies. Government coercion
may be illegal even though the induced third-party action is
itself legal. Just as in Tozzi and Block the allegation was
that illegal government stigmatization would induce third
parties to avoid products that they were clearly free to avoid
on their own (dioxin-containing products in one case, specific
films in the other), here government pressure toward enroll-
ment-based ‘‘gender equity’’ may be illegal but private par-
ties’ pursuit of such gender equity perfectly legal. Cf. United
17
Steelworkers v. Weber, 443 U.S. 193, 201 (1979) (allowing
private parties to adopt an affirmative action plan containing
racial preferences that the Court assumed the government
could not lawfully have required). Because individual suits
against educational institutions would not provide plaintiffs
with an adequate remedy for their injury, § 704 cannot
provide a basis for finding plaintiffs’ claims unreviewable.
* * *
For the foregoing reasons I would reverse the district
court.