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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.

O R D E R

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 redressability 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 Washington Legal Foundation can be distinguished, on the ground

that Washington Legal Foundation involved only claims of

statutory violations, ‘‘whereas here plaintiffs allege Constitutional violations of which the private educational institutions

could not possibly be guilty.’’ The problem with this argument is that it is premised on the faulty assumption that a

plaintiff may avoid the dictates of Washington Legal Foundation merely by reciting constitutional provisions that obviously 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 universities 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 educational institutions involve no substantive claims beyond

those that would otherwise be cognizable under Title IX.

As the dissent concedes, appellants have consistently maintained that, in subscribing to Department of Education enforcement policy interpretations, the universities have themselves 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 enforcement policy interpretations, the universities have engaged in

intentional discrimination that Title IX prohibits. This being

the case, Washington Legal Foundation is obviously controlling, 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 enforcement 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 nonbinding 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 actions and their injuries and the likelihood that judicial action

could redress the injuries. It further argued that the plaintiffs have an adequate remedy against the colleges and universities 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 Enterprise 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 language—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 redressability was lacking in large part because, even if the 1996

Clarification were found invalid, Title IX and the 1975 regulations 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 harbors 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. Neither 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 university 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 actions that would move a college or university toward proportionality, 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 regulation could not challenge it just because the underlying regulation 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’’), plaintiffs 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’’) (internal 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 unlawful 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 enforce Title VI by failing to generate a policy prohibiting such

scholarships. 984 F.2d at 486. It was the preexisting independent 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 agency’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

O R D E R

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.