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 universi[241]*241ties 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 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 schools....”) (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’.... ”).
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. La-Shawn 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 ex[242]*242press 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 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 ... 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, 120 S.Ct. 1858, 146 L.Ed.2d 836 (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.
Free access — add to your briefcase to read the full text and ask questions with AI
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 universi[241]*241ties 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 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 schools....”) (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’.... ”).
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. La-Shawn 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 ex[242]*242press 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 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 ... 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, 120 S.Ct. 1858, 146 L.Ed.2d 836 (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. 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.
[243]*243More 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 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 of Delaware County Valley, Inc. 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.