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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 8, 2004
No. 03-5169
NATIONAL WRESTLING COACHES ASSOCIATION, ET AL.,
APPELLANTS
v.
DEPARTMENT OF EDUCATION,
APPELLEE
–————
On Petition for Rehearing
–————
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
ORDER
Upon consideration of appellants’ petition for rehearing, it
is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
A per curiam statement is attached.
A statement of Senior Circuit Judge WILLIAMS dissenting
from the denial of rehearing is also attached.
1
Per Curiam: Appellants have petitioned for rehearing and
rehearing en banc. On the record at hand, there is no reason
for the panel to revisit this case and there is no valid basis
justifying en banc consideration of this matter. We offer this
brief statement merely to respond to an argument raised in
the dissenting statement.
As an initial matter, we note that appellants have offered
nothing but unadorned speculation to support their claim that
a favorable decision from this court would redress their
alleged injuries. The Supreme Court has made it clear that
plaintiffs cannot rely on such speculation to satisfy the re-
dressability prong of standing. The opinion for the court in
this case invokes this well-established principle of law. See
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d
930, 936–40 (D.C. Cir. 2004).
The opinion for the court also makes it clear that, even if
appellants had standing to pursue their claims in this case,
the availability of a private cause of action directly against
universities bars this lawsuit against the agency. Id. at 945–
46. The court’s decision in Washington Legal Foundation v.
Alexander, 984 F.2d 483 (D.C. Cir. 1993), is controlling on
this point, and appellants have never been able to clear the
hurdle of this precedent.
The dissent’s attempt to distinguish Washington Legal
Foundation is perplexing. The dissent argues that Washing-
ton Legal Foundation can be distinguished, on the ground
that Washington Legal Foundation involved only claims of
statutory violations, ‘‘whereas here plaintiffs allege Constitu-
tional violations of which the private educational institutions
could not possibly be guilty.’’ The problem with this argu-
ment is that it is premised on the faulty assumption that a
plaintiff may avoid the dictates of Washington Legal Founda-
tion merely by reciting constitutional provisions that obvious-
ly do not reflect the gist of the complaint. This is an
untenable proposition, as this case demonstrates.
The heart of appellants’ claim in this case is that universi-
ties have taken actions that violate Title IX and Title IX’s
implementing regulations. It is clear beyond dispute that
2
appellants’ asserted injuries arise solely from the universities’
actions allegedly taken in derogation of Title IX. Indeed, the
‘‘constitutional violations’’ allegedly committed by public edu-
cational institutions involve no substantive claims beyond
those that would otherwise be cognizable under Title IX.
As the dissent concedes, appellants have consistently main-
tained that, in subscribing to Department of Education en-
forcement policy interpretations, the universities have them-
selves adopted unlawful policies and engaged in unlawful
activities. See, e.g., Appellants’ Br. at 8 (‘‘When a school cuts
or caps a team solely to comply with gender proportionality,
it discriminates in violation of Title IX, 29 U.S.C. § 1681(a),
the Title IX regulations, 34 C.F.R. § 106.41(a), and (for public
schools) the Equal Protection Clause of the Fourteenth
Amendment.’’). In short, appellants have argued throughout
this litigation that, in adhering to the Department’s enforce-
ment policy interpretations, the universities have engaged in
intentional discrimination that Title IX prohibits. This being
the case, Washington Legal Foundation is obviously control-
ling, because appellants have a private cause of action directly
against the universities to seek redress for any proscribed
acts of sex discrimination committed by the universities.
Appellants’ action against the agency is therefore barred
under 5 U.S.C. § 704 (2000).
The dissent ignores the fact that the Department’s enforce-
ment policy interpretations are not binding regulations.
They do not carry the force of law, and universities are not
bound to follow the policy interpretations. Therefore, the
mere existence of the Department’s policy interpretations
causes appellants no cognizable injury. Appellants are only
injured when, as they allege, the universities take actions that
violate Title IX and Title IX’s implementing regulations.
There are no viable constitutional claims beyond these alleged
statutory injuries. Thus, appellants have a fully adequate
private cause of action directly against the universities to
seek redress for their alleged injuries.
Finally, this case surely cannot be distinguished from
Washington Legal Foundation, as the dissent argues, on the
3
ground that the agency here ‘‘is charged with bullying [the
educational] institutions into adopting unlawful practices.’’
The only thing the Department has done here is issue non-
binding enforcement policy interpretations, which is hardly
evidence of ‘‘bullying.’’ But even if the Department might be
seen as a bully, this does not change the fact that appellants
still have a private cause of action against the universities for
any acts that the educational institutions take in violation of
Title IX and Title IX’s implementing regulations.
1
WILLIAMS, Senior Circuit Judge, dissenting from the denial
of rehearing: The panel found that the plaintiffs inadequately
alleged the causal connection between the Department’s ac-
tions and their injuries and the likelihood that judicial action
could redress the injuries. It further argued that the plain-
tiffs have an adequate remedy against the colleges and uni-
versities that actually terminated men’s sports teams, and
that under our precedents the existence of this supposed
remedy negates any remedy against the Department under
the Administrative Procedure Act. 366 F.3d at 933–49. I
discuss all three contentions in my dissent. 366 F.3d at 949–
59. A few further points may be helpful.
1. Causation. In addressing the standing of plaintiffs
who claimed to have been injured by a government agency’s
imposition of more stringent standards on third parties than
were lawful, we have on four occasions ruled explicitly that
they would meet the causation criterion if they could show
that the agency’s allegedly illicit action was a ‘‘substantial
factor’’ in bringing about the injurious conduct of the third
parties. Tozzi v. United States Dep’t of Health and Human
Servs., 271 F.3d 301, 308 (D.C. Cir. 2001); Competitive Enter-
prise Inst. v. National Highway Traffic Safety Admin., 956
F.2d 321, 323 (D.C. Cir. 1992); Competitive Enterprise Inst.
v. National Highway Traffic Safety Admin., 901 F.2d 107,
114 (D.C. Cir. 1990); Community for Creative Non–Violence
v. Pierce, 814 F.2d 663, 669 (D.C. Cir. 1987). In two we have
implicitly applied that standard. Crete Carrier Corp. v. EPA,
363 F.3d 490, 493 (D.C. Cir. 2004) (plaintiffs must show that it
was ‘‘substantially probable’’ that the challenged standard
was ‘‘responsible’’ for the price increase injuring plaintiffs);
Block v. Meese, 793 F.2d 1303, 1308–09 (D.C. Cir. 1986)
(finding plaintiffs have alleged a sufficient injury because
government report ‘‘creates a disincentive’’ for third parties
to obtain films from plaintiffs). Here the court failed to even
acknowledge the circuit’s principle, much less follow it in
substance. This failure is all the more acute because this
case was resolved on the pleadings, so that only an allegation
of causation was necessary. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). Indeed, much of the court’s lan-
guage—let alone its factual analysis—makes plain that it was
not following a ‘‘substantial factor’’ test. See Maj. Op., 366
2
F.3d at 939 (‘‘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.’’) (emphasis added); id. at 940 (‘‘Moreover,
other reasons unrelated to the challenged legal requirements
may continue to motivate schoolsTTTT’’) (emphasis added); id.
at 943 (‘‘Finally, the GAO also found that several other
factors also contributed to schools’ decisions as much or more
than ‘gender equity considerations’TTTT’’).
The present decision appears to be a random exception to
circuit precedent. The Supreme Court has never explicitly
approved or rejected our ‘‘substantial factor’’ test, but under
our standard principles we should apply that test unless or
until the Court tells us otherwise. LaShawn v. Barry, 87
F.3d 1389, 1393–97 (D.C. Cir. 1996) (en banc).
2. Redressability. The majority thought that redressabil-
ity was lacking in large part because, even if the 1996
Clarification were found invalid, Title IX and the 1975 regula-
tions would continue to apply. See Maj. Op., 366 F.3d at 944.
But the 1996 Clarification wrought a material change in the
pre-existing regulatory condition. It created three safe har-
bors for colleges and universities, of which the clearest was
achieving strict proportionality between men’s and women’s
enrollment and their team sport participation, without regard
to interest or skill. See 366 F.3d at 950 (discussing mention
of such a ‘‘safe harbor’’ in letter from the Department). No
such safe harbor existed before the 1996 Clarification. Nei-
ther the statute nor the formal regulations said anything
about strict proportionality of this sort. They may well have
allowed it (that issue in part involves the merits), but they did
not express either a congressional or departmental view that
achieving such proportionality would win a college or univer-
sity a legal pass. For colleges and universities interested in
keeping their federal funding and avoiding costly litigation
(and how many would not be!), the Clarification thus created
strong pressure to achieve proportionality. Among the ac-
tions that would move a college or university toward propor-
tionality, dropping men’s teams was a relatively cheap device.
Unsurprisingly, colleges and universities responded to the
3
pressure by including such drops as part of their solutions—
or so at any rate plaintiffs quite credibly allege.
Redressability follows logically. If the 1996 Clarification
was a substantial factor in leading colleges and universities to
discard teams, its deletion can be expected to cause many to
restore teams. A probabilistic benefit is adequate to support
standing. ‘‘Redressability examines whether the relief sought
TTT will likely alleviate the particularized injury alleged by
the plaintiff.’’ Florida Audubon Soc’y v. Bentsen, 94 F.3d
658, 663–64 (D.C. Cir. 1996) (en banc) (emphasis added). See
also, e.g., Vermont Agency of Natural Resources v. United
States ex rel. Stevens, 529 U.S. 765, 771 (2000) (requiring
‘‘substantial likelihood’’ that relief will remedy injury). It
would be a novel principle of administrative law that persons
disadvantaged by a new, stringent interpretation of a regula-
tion could not challenge it just because the underlying regula-
tion would remain in place once the challenged interpretation
was held unlawful.
3. Alternative remedy. In Washington Legal Foundation
v. Alexander, 984 F.2d 483 (D.C. Cir. 1993) (‘‘WLF’’), plain-
tiffs sued the Department of Education, alleging that it had
failed ‘‘to issue and enforce’’ regulations withdrawing federal
funds from colleges and universities that were, according to
the complaint, violating Title VI in their administration of
race-based scholarship programs. Id. at 485. We affirmed
the district court’s dismissal on the basis of the APA’s
limitation of judicial review to ‘‘final agency action for which
there is no other adequate remedy in a court.’’ 5 U.S.C.
§ 704. We reasoned that this barred a suit against the
Department because a person suffering discrimination by a
college or university in violation of Title VI had an adequate
alternative remedy—a right of action under Title VI against
the discriminating institution itself. See WLF, 984 F.2d at
485.
In my initial dissent I reasoned that WLF could not apply
to the extent that the educational institutions’ conduct here
was perfectly legal—though induced by Department action
that the plaintiffs said was illegal. 366 F.3d at 958–59.
4
Plaintiffs, however, consistently allege that the educational
institutions’ acts are also illegal; given that argument, my
prior reasoning appears largely inapplicable. Nonetheless, it
remains the case that WLF by no means bars this suit.
First, WLF involved only claims of statutory violations,
whereas here plaintiffs allege Constitutional violations of
which the private educational institutions could not possibly
be guilty. See Appellants’ Br. at 8 (‘‘USDE’s Title IX policies
restrict, abrogate, or dilute Equal–Protection rights’’) (inter-
nal quotation marks omitted); Am. Compl. ¶ 3, reprinted in
Joint Appendix 12 (‘‘Plaintiffs seek declaratory and injunctive
relief to compel USDE to comply with the Equal Protection
component of the Due Process Clause, U.S. CONST. amend.
V.’’). As the private universities and colleges do not have the
capacity to violate the Constitution, claims of such violations
can run only against the Department (and/or state colleges
and universities), and there is no remedy against the private
institutions at all, much less an adequate one.
More important, in WLF and kindred cases the agency was
accused only of failing to stop or penalize illegal behavior by
educational institutions. Here, by contrast, the agency is
charged with bullying those institutions into adopting unlaw-
ful practices.
In WLF, the Department of Education was alleged to have
either refused to enforce an existing policy against race-based
minority scholarships or abdicated its responsibility to en-
force Title VI by failing to generate a policy prohibiting such
scholarships. 984 F.2d at 486. It was the preexisting inde-
pendent behavior of colleges and universities—operating the
minority scholarship programs in such a way as to violate
Title VI—that caused the alleged injuries. In this setting, we
held that a suit directly against the universities was an
adequate alternative remedy, barring the suit against the
agency. Id. at 486. Exactly the same relationship—mere
agency failure to stop or penalize illegal behavior by others—
appears to characterize all our decisions in the WLF line.
Godwin v. Sec’y of Housing and Urban Development, 356
F.3d 310, 311–12 (D.C. Cir. 2004) (per curiam); Women’s
5
Equity Action League v. Cavazos, 906 F.2d 742, 744–45, 751
(D.C. Cir. 1990); Coker v. Sullivan, 902 F.2d 84, 85, 89–90
(D.C. Cir. 1990); Council of and for the Blind v. Regan, 709
F.2d 1521, 1531–32 (D.C. Cir. 1983) (en banc). And the same
appears to be true for out-of-circuit precedents that take a
WLF approach. See Jersey Heights Neighborhood Ass’n v.
Glendening, 174 F.3d 180, 191–92 (4th Cir. 1999); New York
City Employees’ Retirement System v. SEC, 45 F.3d 7, 14 (2d
Cir. 1995).
Whereas it is quite logical to have plaintiffs obtain relief
through actions directly against wrongdoers when the agen-
cy’s only role is neglect, it makes little sense to extend WLF
to a context where the agency itself is, as alleged here, the
driving force behind the illegality. In effect, the majority
ruling here would have the courts scotch the snake, not kill it.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 8, 2004
No. 03-5169
NATIONAL WRESTLING COACHES ASSOCIATION, ET AL.,
APPELLANTS
v.
DEPARTMENT OF EDUCATION,
APPELLEE
–————
On Petition for Rehearing En Banc
–————
Before: GINSBURG, Chief Judge, EDWARDS, SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, ROBERTS,
Circuit Judges
ORDER
Appellants’ petition for rehearing en banc and the response
thereto have been circulated to the full court. The taking of
a vote was requested. Thereafter, a majority of the judges of
the court in regular, active service did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
Circuit Judge TATEL did not participate in this matter.
Chief Judge GINSBURG would grant rehearing en banc for
the reasons stated in Senior Circuit Judge WILLIAMS’s dissent
from the denial of rehearing.