Eric Pearson, a former Princeton wrestler, founded the American Sports Council (ASC) in 2002 with the aim of preserving intercollegiate athletic programs threatened with elimination.
His motivation was personal. In the early 1990s, he watched his Tigers team face the chopping block, a formative experience that propelled him into advocacy and led to the formation of what was first called the College Sports Council.
At the heart of the group’s work has been a long-running—though thus far unsuccessful—challenge to the U.S. Department of Education’s 1979 Title IX policy interpretation. That guidance established a three-prong test for assessing whether federally funded universities comply with prohibitions on sex discrimination. In the realm of athletics, Pearson and his allies contend that the first prong—offering opportunities in proportion to the student body’s gender composition—has driven widespread cuts to men’s teams and violates the Constitution’s Equal Protection Clause.
Courts, however, have consistently rejected or sidestepped those 14th Amendment claims over the past quarter century, while almost uniformly upholding the policy interpretation.
The ASC itself has suffered legal defeats on this front, including as a plaintiff in a 2011 lawsuit against the U.S. Department of Education that was dismissed on jurisdictional grounds, as well as its support of an unsuccessful Title IX lawsuit filed 2021 by a former University of Minnesota male gymnast against the school, after it eliminated the program.
But Pearson thinks the broader legal and political landscape may finally be shifting in his favor. He points to the Supreme Court’s landmark 2024 ruling in Loper Bright Enterprises v. Raimondo. That decision overturned the Chevron doctrine, as well as the Trump administration’s explicit attempt to “deconstruct the administrative state” by, among other things, redefining the role and scope of the Department of Education.
In Loper Bright, the Court discarded four decades of administrative law precedent in Chevron v. Natural Resources Defense Council (1984), which had directed lower courts to defer to federal agencies when it came to interpreting “ambiguity in a statute” within their jurisdiction.
Against that backdrop, the ASC earlier this month filed a petition with the Department of Education, seeking repeal of the 1979 Title IX policy interpretation.
“Proportional balance rules the day despite unequivocal statutory language,” the petition states. “Rather than follow the statutory language text, all too often school administrators have sought to comply with Title IX by eliminating and reducing teams, with men’s and Olympic sports bearing the brunt of the damage.”
The petition cited recently enacted or attempted men’s sports program cuts at California Baptist, East Tennessee State and Clemson, attributing them squarely to the policy.
Drafted by the Pacific Legal Foundation, a conservative nonprofit public interest group that has long represented the ASC pro bono, the petition echoes arguments the two groups have advanced for decades, including in a similar filing during the George W. Bush administration.
Joshua Thompson, the Pacific Legal Foundation’s director of equality and opportunity litigation, said President Donald Trump’s second term, which commenced with DOGE cuts and a focus on the federal bureaucracy, offers an opening that did not exist even during the first Trump term.
“There is a shift in how this administration works,” Thompson, who was the lead author of the ASC’s latest Title IX petition, said. “If not now, then when? Because this policy has been in place for 46 years and time is not going to make it better.”
But other Title IX advocates argue that this latest push reflects a misreading of history and the current legal moment.
“They already have lost in every possible way, so this effort is nothing new,” said Nancy Hogshead, a former Olympic swimmer and civil rights lawyer, said.
Still, Hogshead concedes that the current leadership in Washington may be a more receptive audience for legal arguments she dismisses as, “frankly, dull.”
Arthur Bryant, a prominent Title IX attorney who has represented female and male college athletes—including the Clemson men’s track and cross country runners referenced in ASC’s petition—said the petition is rife with contradictions. For example, it claims the policy has created athlete gender quotas while citing cases Bryant contends have held the opposite. He also dismissed its practical-effects argument—that schools mistakenly treat the three-prong test as a one-prong mandate—as insufficient grounds for repeal.
“If that is the real problem, the group should educate the schools, not try to repeal the policy interpretation on grounds that are utterly false,” Bryant said. “The reality is that Title IX in no way prevents schools from trading off men’s opportunities in one sport for men’s opportunities in another sport.
Bryant added: “To the extent they want to drop other opportunities because they want to put all of them in football, or because of [expenses arising from] the House v. NCAA settlement, that has nothing to do with the policy interpretation.”
Asked about the large number of roster spots schools allocate to football, Pearson responded: “We are not in favor of choosing one sport over another. If you no longer have proportionality as a compliance standard, the roster spot problem goes away.”
As for Loper Bright, Bryant contends that the Title IX policy interpretation does not apply, since it provides guidance interpreting regulations rather than a statute.
“These guys may want to turn the clock back to when women didn’t have anything close to equal opportunities, but the world is moving forward not backward,” Bryant said.
Pearson maintains that his organization supports both Title IX and women’s sports and that its goal is to expand opportunities for all athletes.
“What we are trying to do with the petition is not get rid of Title IX but make the law more consistent with statute,” he said. “Because now you have a situation like at Cal Baptist, where the [men’s] team is being dropped, but they are retaining the women’s team. So, clearly they are denying [men] benefits of participation based on gender.”
Piggybacking off the petition, the Pacific Legal Foundation last week filed a Title IX lawsuit against Cal Baptist on behalf of three former wrestlers, who allege the university discriminated against them by eliminating their program in pursuit of proportionality.
Both the petition and lawsuit largely restate the arguments the ASC and Pacific Legal Foundation have advanced for decades and that they made in an amicus brief last year supporting the University of Kentucky in a class-action Title IX case brought by former lacrosse player Elizabeth Niblock. She and other female athletes accused the school of failing to provide proportionate athletic participation opportunities for women by not offering varsity programs in lacrosse, equestrian and field hockey. In a ruling in January, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s decision in Kentucky’s favor, while emphasizing that Title IX “does not require proportionate representation of students on sports teams.”
In its appellate briefing, Kentucky argued that the policy interpretation does not survive Loper Bright, nor the Supreme Court’s 2019 decision in Kisor v. Wilkie. While the Sixth Circuit majority said it did not need to address that matter to resolve the case, a concurring opinion stated that “a lot has changed since 1979,” and that the Title IX guidance policy interpretation merits reconsideration.
Johnson notes that concurrence marked the first time the federal judiciary had explicitly articulated “how we think Title IX ought to be read,” and that other courts would rule similarly if given the chance.
Even in the most optimistic scenario, that process would take years. He hopes the Trump administration will act on the issue much sooner.