Full opinion text
MEMORANDUM OPINION SULLIVAN, District Judge. I. Introduction Plaintiffs, National Wrestling Coaches Association (“NWCA”), Committee to Save Bucknell Wrestling (“CSBW”), Marquette Wrestling Club (“MWC”), Yale Wrestling Association (‘YWA”), and College Sports Council (“CSC”) are associations representing male intercollegiate and scholastic athletes, coaches, and alumni. They commenced this action for declaratory judgment and injunctive relief to enjoin the U.S. Department of Education (“DoE”) from enforcing Title IX, which prohibits sex discrimination in education, in a manner they contend results in discrimination against male athletes. Specifically, plaintiffs maintain that the Department’s current enforcement policies lead educational institutions to cut men’s sports teams, artificially limit the number of participants on men’s teams, and otherwise impermissibly discriminate against men based on sex in the provision of athletic opportunities, thereby denying male athletes and other interested parties the equal protection of laws. Accordingly, plaintiffs, on behalf of their members, challenge the agency’s “1979 Policy Interpretation” and “1996 Clarification,” pursuant to which Title IX and its regulations are currently enforced. Plaintiffs contend that both of these policy statements violate the Equal Protection component of the Due Process Clause of the Fifth Amendment, and exceed the agency’s regulatory authority under the statute by requiring the very discrimination the statute prohibits. Moreover, plaintiffs allege that the 1996 “Clarification” effectively amended the substantive provisions of the 1975 Title IX regulations under the guise of interpretation and clarification without formal rulemaking, thus violating the Administrative Procedure Act (APA). Plaintiffs also maintain that procedural infirmities in promulgation of both the 1979 Policy Interpretation and the 1996 Clarification render both documents null and void. Plaintiffs seek declaratory and injunc-tive relief vacating the 1996 Clarification and the 1979 Policy Interpretation, compelling the Department of Education to conduct formal notice and comment rule-making “consistent with Title IX, the U.S. Constitution, and this Court’s declaratory relief in this action,” and staying all “disparate-impact components” of Title IX regulations until a new final rule is promulgated. Currently pending before this Court are defendant’s motion to dismiss and plaintiffs’ opposed motion for leave to file a second amended complaint. Upon careful consideration of the motions, the responses and replies thereto, the oral arguments of counsel, the entire record herein, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby ORDERED that the plaintiffs’ motion for leave to file a second amended complaint is hereby DENIED; and it is FURTHER ORDERED that the defendant’s motion to dismiss is hereby GRANTED. A. Parties NWCA is a not-for-profit corporation representing the interests of collegiate and scholastic wrestling coaches. First Am. Compl. ¶ 4. CSBW is an unincorporated not-for-profit association of student-athletes attending Bucknell University in Lewisburg, PA, as well as Bucknell University alumni, formed to advocate for maintenance or reinstatement of Bucknell University’s intercollegiate wrestling program. Id. ¶ 5. Its members include students who competed on the university’s 2001-2002 men’s wrestling team. Id. MWC is an unincorporated not-for-profit association of student-athletes attending Marquette University in Milwaukee, WI, along with alumni of the University, formed to raise funds to support Marquette’s men’s wrestling program. Id. ¶ 6. YWA is an unincorporated not-for-profit association, formed to provide financial support to the men’s wrestling program at Yale University in New Haven, CT, and to seek reinstatement of men’s wrestling as an intercollegiate varsity sport at the University. Id. ¶ 7. CSC is a not-for-profit District of Columbia corporation which serves as an umbrella organization for groups representing the interests of collegiate coaches and athletes, and includes among its members the national collegiate coaches’ associations for men’s and women’s swimming, track and field, wrestling, and men’s gymnastics. Id. ¶ 8. Defendant DoE, is the federal agency responsible for implementation and enforcement of Title IX, 20 U.S.C. § 1681-1688, the federal statute prohibiting discrimination based on sex in educational programs and activities receiving federal financial assistance. The National Women’s Law Center (“NWLC”), American Volleyball Coaches Association, International Women’s Lacrosse Coaches Association, National Fast-pitch Softball Coaches Association, Women’s Basketball Coaches Association, American Association of University Women, and Women’s Sports Foundation, moved for and were granted permission to participate as amici curiae in this case. All are organizations asserting an interest in the achievement of equal opportunities for women and girls in athletics, and filed briefs in support of defendant’s motion to dismiss. Also participating as amicus curiae is the Independent Women’s Forum (“IWF”), a nonprofit organization advocating for “individual liberty and responsibility, self-governance, the superiority of the market economy, and ... equal opportunity for all.” IWF joins plaintiffs in opposing defendant’s motion to dismiss, principally advancing arguments on the merits of plaintiffs’ claims. B. Procedural History DoE filed a motion to dismiss plaintiffs’ claims for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), on the grounds that plaintiffs lack standing to bring their claims under Article III of the U.S. Constitution, and that their action is barred on sovereign immunity and statute of limitations grounds. Plaintiffs cross-moved for summary judgment in their response to the defendant’s motion to dismiss. However, by Order dated July 25, 2002, proceedings on plaintiffs’ motion for summary judgment were stayed until the question of subject matter jurisdiction was resolved. The Court heard oral argument on defendant’s motion to dismiss on October 15, 2002. Presumably in an effort to correct the jurisdictional defects alleged by defendant, plaintiffs moved for leave to file a Second Amended Complaint. On January 16, 2003, plaintiffs filed a “Notice of Petition,” advising the Court that plaintiff CSC had petitioned the Secretary of Education, pursuant to 5 U.S.C. § 553(e) of the APA, seeking repeal of the 1979 Policy Interpretation and 1996 Clarification. II. Statutory and Regulatory Framework In light of the complexity of the regulatory scheme through which Title IX has been implemented and enforced over the past 30 years, as well as the significance of the statute’s substantive and procedural history to plaintiffs’ claims, the Court will first engage in a comprehensive review of the Title IX statutory and regulatory framework before directly addressing plaintiffs’ claims. A. Title IX Title IX was enacted as part of the Education Amendments of 1972, following extensive hearings on discrimination in education, during which over 1200 pages of testimony were gathered, documenting “massive, persistent patterns of discrimination against women” in colleges and universities. Pub.L. No. 92-318, §§ 901-905, 86 Stat. 373-75 (1972); 118 Cong. Rec. 5804 (daily ed. Feb. 28, 1972) (statement of Sen. Bayh). The objectives of the statute are two-fold: “to avoid the use of federal resources to support discriminatory practices,” and “to provide individual citizens effective protection against those practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704, 99 S.Ct. 1946, 1961, 60 L.Ed.2d 560 (1979). Section 901 of Title IX, which is patterned after Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits discrimination based on sex in federally funded educational programs and activities. Pub.L. No. 92-318, § 901, codified at 20 U.S.C. § 1681 (2003); 118 Cong. Rec. 5802, 5803, 5807 (daily edition Feb. 28, 1972) (statement of Sen. Bayh); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 514, 529, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). It provides, in relevant part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance .... 20 U.S.C. § 1681. The statute expressly precludes a finding of discrimination based solely on statistical evidence of gender disparities in athletic programs: Nothing contained in ... this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area. Id.; Cohen v. Brown Univ., 991 F.2d 888, 894-95 (1st Cir.1993) [hereinafter “Cohen I”]. This statutory language does not, however, preclude any consideration of statistical disparities in the adjudication of a Title IX claim, as evidenced by the proviso immediately following: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such imbalance exists with respect to participation in, or receipt of benefits of, any such program or activity by members of one sex. 20 U.S.C. § 1681. Federal agencies, such as DoE, providing financial assistance to educational programs or activities are authorized and directed to effectuate the provisions of Section 1681 by issuing rules, regulations, or orders of general applicability which shall be consistent with the achievement of the objectives of the statute authorizing the financial assistance in connection "with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. 20 U.S.C. § 1682 (2003). The “ultimate sanction” for non-compliance with the statute is termination of federal funding or denial of future federal grants. Id., North Haven Bd. of Educ. v. Bell, 456 U.S. at 514, 102 S.Ct. 1912. The statute expressly enables “any person aggrieved” by .an agency’s termination of funding based on a finding of non-compliance with the statute to seek judicial review of such agency action. 20 U.S.C. § 1683 (2003). Further, “private lawsuits have played an important role in Title IX enforcement.” Gender Equity: Men’s and Women’s Participation in Higher Education, General Accounting Office, GAO 01-128 at 5 (December 2000) [hereinafter “GAO Report”]; Cannon v. Univ. of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (recognizing implied private right of action to enforce Title IX). B. 1975 Regulations Two years after Title IX was passed, Congress enacted the Education Amendments of 1974, directing the Secretary of Health, Education, and Welfare (“HEW”), DoE’s predecessor agency, to promulgate regulations implementing Title IX, which were to “include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports.” Pub.L. No. 93-380, § 844, 88 Stat. 484, 612 (1974). In 1975 HEW published final Title IX regulations (“1975 Regulations”), which remain in effect. 40 Fed.Reg. 24,128 (June 4, 1975); codified at 45 C.F.R. §§ 86.1-86.71 (2003). Promulgation of the final regulations followed a four month period during which over 9,700 public comments regarding proposed regulations published in the Federal Register on June 20, 1974 were accepted and considered. Id. The regulatory provision specifically addressing federally funded athletic programs provides, in relevant part: A recipient ... shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available, the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes ... 45 C.F.R. § 86.41(c). This section lists nine additional factors an agency may consider when determining whether a funded entity is complying with the regulations by making equal opportunities available in athletics. Id. These factors include provision of equipment and supplies, as well as physical, coaching, medical, training, housing and dining facilities and services, scheduling of games and practice times, travel and per diem allowances, opportunity to receive academic tutoring, and publicity. Id. The regulations also provided for a three year “adjustment period” from the date of promulgation to allow affected educational institutions to come into compliance. 45 C.F.R. § 86.41(d). The 1975 HEW Regulations were approved by President Gerald Ford on May 27, 1975. 40 Fed.Reg. 24,137 (June 4,1975). C. 1979 Policy Interpretation Several months after the expiration of the three year “adjustment period,” HEW issued a proposed policy interpretation to, inter alia, further explain the concept of “equal athletic opportunity” embodied in the 1975 Regulations and “provide further guidance on what constitutes compliance with the law.” 43 Fed.Reg. 58,070 (Dec. 11, 1978); Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed.Reg. 71,413 (December 11, 1979) [hereinafter “1979 Policy Interpretation”]. After accepting over 700 comments from the public and visiting eight universities to determine how the proposed policy and suggested alternatives would apply in actual practice, the agency promulgated a final policy, dubbed the “1979 Policy Interpretation.” 44 Fed.Reg. 71,413. The proposed Policy Interpretation noted that HEW had, at that time, “received 93 complaints alleging that more than 62 institutions of higher education were not providing equal athletic opportunities for women.” 43 Fed.Reg. at 58,071. The purpose of the final 1979 Policy Interpretation was described as follows: this Policy Interpretation explains the regulation so as to provide a framework within which the complaints can be resolved, and to provide institutions of higher education with additional guidance on the requirements for compliance with Title IX in intercollegiate athletic programs. The final Policy Interpretation clarifies the meaning of “equal opportunity” in intercollegiate athletics. . It explains the factors and standards set out in the law and regulation which the Department will consider in determining whether an institution’s intercollegiate athletics program complies with the law and regulations. It also provides guidance to assist institutions in determining whether any disparities which may exist between men’s and women’s programs are justifiable and nondiscriminatory. 44 Fed.Reg. 71,413, 71,414. The 1979 Policy Interpretation emphasizes that, although it “does not! contain a separate section on institutions’ future responsibilities[,] ... institutions remain obligated by the Title IX regulation to accommodate effectively the interests and abilities of male and female students with regard to the selection of sports and levels of competition available.” 44 Fed.Reg. 71,414. This language has been interpreted as indicating that the 1979 Policy Interpretation was designed to assist institutions in “self-policing” their compliance with Title IX. See, e.g. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 612 (6th Cir.2002); Kelley v. Bd. of Trustees, Univ. of Ill., 35 F.3d 265, 268 (7th Cir.1994). Significantly, the 1979 Policy Interpretation concludes that, “[i]n most cases, this will entail development of athletic programs that substantially expand opportunities for women to participate and compete at all levels.” Id. (emphasis added). Finally, the 1979 Policy Interpretation is “designed specifically for intercollegiate athletics,” but emphasizes that “its general principles will often apply to club, intramural, and interscholastic athletic programs, which are also covered by the regulation.” 44 Fed.Reg. 71,413. The 1979 Policy Interpretation states that, with respect to the first of the ten factors identified in the 1975 Regulations as determinative of whether an institution is providing “equal opportunity” in its athletic program, i.e. “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes,” 45 C.F.R. § 86.41(c)(1), recodified at 34 C.F.R. § 106.41(c)(1) (2003), the agency will conduct an “Overall Determination of Compliance,” during which it will ascertain (a)whether an institution’s policies are discriminatory in language or effect; (b) whether the institution’s program as a whole includes substantial and unjustified disparities in the opportunities or treatment afforded to male and female athletes; and (c) whether segments of the institution’s program include, disparities in the treatment and opportunities that are substantial enough to deny equality of athletic opportunity. 44 Fed.Reg. 71,418. Moreover, the agency will assess compliance with the “interests and abilities” factor of the ten-factor equal opportunity test by examining: a. The determination of athletic interests and abilities of students; b. The selection of sports offered; and c. The levels of competition available including the opportunity for team competition. 44 Fed.Reg. 74,417. In order to assess students’ athletic interests and abilities, the 1979 Policy Interpretation permits institutions to use “any non-discriminatory method,” provided that: (a) the process takes into account the nationally increasing levels of women’s interests and abilities; (b) the methods do not disadvantage the members of the underrepresented gender; (c) the methods of determining ability consider team performance records; and (d) the methods are responsive to the expressed interests of- the students of the underrepresented gender capable of intercollegiate competition. 44 Fed.Reg. 71,417. With respect to the selection of sports offered, “the regulation does not require institutions to integrate their teams nor to provide exactly the same choice of sports to men and women.” 44 Fed.Reg. 71,417-18. Rather, the 1979 Policy Interpretation sets forth a framework for effective accommodation of student interests when selecting athletic offerings within contact sports and non-contact sports. Id. The examination of the third criterion, “levels of competition available, including the opportunity for team competition,” under the 1979 Interpretation is informed by the agency’s view that: In effectively accommodating the interests and abilities of male and female athletes, institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition, and for athletes of each sex to have competitive team schedules which equally reflect their abilities. 44 Fed.Reg. 74,418. According to the 1979 Policy Interpretation, compliance with this directive is achieved by demonstrating one of the following, under what has become known as the “Three Part Test”: (1) .. .intercollegiate level participation opportunities for male and female athletes 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 ... 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 underrepresented among intercollegiate athletes and the institution cannot show a continuing practice of program expansion such as that cited above,... 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. Id. [hereinafter “Three Part Test”]. D. Department of Education Organization Act The Department of Education Organization Act of 1979 divided the former HEW into two new agencies: DoE and the Department of Health and Human Services. Pub.L. No. 96-88, 93 Stat. 669, 671 (1979); 20 U.S.C. § 3411 (2003); E.O-. 12212, 45 Fed.Reg. 29557 (May 2, 1980). In so doing, it provided that, “in carrying out any function transferred by this Act, the Secretary, or any officer or employee of the Department, may exercise any authority available by law . •.. to the official or agency from which such function was transferred ...:” 20 U.S.C. §■ 3471(a) (2003); see also 20 U.S.C. § 3507 (2003)(references in other statutes to the functions or officials of HEW “shall be deemed to refer to the Secretary, official, or other component of the Department to which this Act transfers such functions.”). The Act also expressly stipulated that “[a]ll orders, determinations, rules, [and] regulations ... issued ... or allowed to become effective by the President [or] any Federal department or agency or official thereof, ... in the performance of functions, which are transferred under this Act to the Secretary or the Department, and ... which are in effect at the time this Act takes effect, shall continue in effect according to their terms until modified, terminated, superseded, set aside or revoked in accordance with the law by the President, the Secretary, or other authorized official 20 U.S.C. § 3505(a) (2003). Accordingly, DoE promulgated a rule recodifying under a new Title 34 of the Code of Federal Regulations those HEW regulations which were transferred to DoE. 45 Fed.Reg. 30,802 (May 9, 1980). The 1975 Regulations implementing Title IX were recodified without substantial change at 34 C.F.R. § 106.41 (2003). E. 1996 Clarification On May 9, 1995, the House Subcommittee on Postsecondary Education, Training and Life-long Learning of the Economic and Educational Opportunities Committee held a hearing on Title IX and the Three Part Test. On June 7, 1995, 142 Members of Congress wrote the Assistant Secretary for Civil Rights for DoE, the Honorable Norma V. Cantó, expressing concern that educational institutions were complying with the Three-Part Test by eliminating men’s athletic opportunities to achieve “substantial proportionality” of opportunity under the first prong of the Three Part Test rather than by increasing women’s athletic opportunities. In response to “requests for specific guidance about existing standards that have guided the enforcement of Title IX in the area of intercollegiate athletics,” DoE subsequently sent a proposed “clarification” of the 1979 Policy Interpretation to over 4,500 interested parties as an enclosure to a letter from Ms. Cantó addressed “Dear Colleague.” Clarification of Intercollegiate Athletics Policy Guidance: the Three-Part Test (Sep. 20, 1995) (transmitted by Letter from Norma V. Cantó, Assistant Sec’y, Office for Civil Rights, Department of Education (Sep. 20, 1995)); Clarification of Intercollegiate Athletics Policy Guidance: the Three-Part Test (Jan. 16, 1996) (transmitted by Letter from Norma V. Cantó, Assistant Sec’y, Office for Civil Rights, Department of Education). A Notice in the Federal Register announced the availability of the draft clarification. 60 Fed.Reg. 51,460 (Oct. 2, 1995). The letter transmitting the proposed Clarification explicitly emphasized that, by issuing the requested “guidance,” DoE was “not revisiting the Title IX regulation or the Title IX Policy Interpretation.” Clarification of Intercollegiate Athletics Policy Guidance: the Three-Part Test (Sep. 20,1995) (transmitted by Letter from Norma V. Cantó, Assistant Sec’y, Office for Civil Rights, Department of Education (Sep. 20, 1995)). Public comment was solicited only with respect to the narrow question of “whether it provides the appropriate clarity in areas that have generated questions.” Id. The letter of transmittal also emphasized that the Clarification focused on the Three Part Test, which it described as “a test used to determine whether students of both sexes are provided nondiscriminatory opportunities to participate in athletics.” Id. After review of over 200 public comments on the 1995 Draft Clarification, DoE released a final version of the Clarification on January 16, 1996. Clarification of Intercollegiate Athletics Policy Guidance: the Three-Part Test (Jan. 16, 1996) (transmitted by Letter from Letter from Norma V. Cantó, Assistant Sec’y, Office for Civil Rights, Dep’t of Educ.) [hereinafter “1996 Clarification”]. DoE’s Office for Civil Rights recognized that it had received comments suggesting that the Clarification, as well as the Three Part Test it addressed, were substantively flawed, but reiterated that it had only requested comments regarding whether the document provided necessary clarity, and that “it would not be appropriate to revise the 1979 Policy Interpretation.” Id. The final 1996 Clarification “provides specific factors that guide an analysis of each part of the three-part test. In addition, it provides examples to demonstrate, in concrete terms, how these factors will be considered.” Id. Certain provisions of the 1996 Clarification are of particular importance to the issues raised by this litigation. For instance, the 1996 Clarification emphasizes that the “Three-Part Test” provides an institution with “three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics. If an institution has met any part of the three-part test, [DoE’s Office of Civil Rights] will determine that the institution is meeting this requirement.” Id. at 2. It goes on to underscore that the requirement addressed by the “Three-Part Test,” the provision of nondiscriminatory participation opportunities, is only one of many factors considered under the 1975 Regulations to determine if an institution is in compliance with the intercollegiate athletics provision of Title IX. Id. Other factors considered under the 1975 Regulations and the 1979 Policy Interpretation include, inter alia, the quality of competition offered, as well as coaching, equipment, facilities, recruitment, and scheduling. Id. Of particular concern to plaintiffs is language used in the 1996 Clarification describing the first prong of the Three Part Test as a “safe harbor.” The letter of transmittal accompanying the final version of the 1996 Clarification states The first part of the test — substantial proportionality — focuses on the participation rates of men and women at an institution and affords an institution a “safe harbor” for establishing that it provides nondiscriminatory participation opportunities. Letter from Norma .V. Cantú, Assistant Sec’y, Office for Civil Rights,- Dep’t of Educ. (Jan. 16, 1996) at 2. It immediately goes on to say that, if an institution does not meet the first prong of the Three Part Test, it “may comply with Title IX by satisfying either part two or part three of the test.” Id. The words “safe harbor” do not appear anywhere in the language of the final 1996 Clarification itself. Plaintiffs also emphasize that the 1996 Clarification does not prevent the practice of “capping” (limiting the number of participants on a team) or eliminating men’s teams as part of a funded entity’s overall efforts at compliance. Specifically, the letter of transmittal states: 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 opportunities for men ... Ultimately, Title IX provides institutions with flexibility and choice regarding how they wall provide nondiscriminatory participation opportunities. Letter from Norma V. Cantó, Assistant Sec’y, Office for Civil Rights, Dep’t of Educ. (Jan. 16,1996) at 4. Finally, citing to the language of the 1979 Policy Interpretation, the 1996 Clarification outlines the manner in which the number of “participation opportunities” for each sex is determined for purposes of the first part of the “Three-Part Test,” making it clear that the number of actual athletes on a team, as opposed to the number of slots available on a team, is used. Id. at 3 (citing 44 Fed.Reg. at 71,-415). ' F. Intervening History It is undisputed that Title IX, as enforced by HEW and subsequently by DoE, has had a tremendous impact on women’s opportunities in intercollegiate athletics, and thus has enabled women to reap the myriad benefits of participation in athletic programs. The General Accounting Office reports that the number of women participating in intercollegiate sports grew from 30,000 in 1972 to 157,000 in the 1997-98 school year. Id. at 5. Over the same time period, men’s overall participation dropped only slightly, from 248,000 to 234,-000. Id. Much, however, remains to be done in order to achieve substantial equality and eliminate continuing systemic discrimination. Although during the 1998-1999 school year, NCAA member schools spent more money on athletic scholarships for women than for men, they spent more money on average per male intercollegiate sports participant in terms of recruiting, coaching, and operations. Id. For instance, although women represent 53% of undergraduates at Division I schools, they are afforded only 41% of available athletic participation opportunities, 36% of athletic operating budgets, and 32% of recruiting dollars. Brief of Amici Curiae National Women’s Law Center, et al. [hereinafter “NWLC Brief’] at 13-14 (quoting NCAA 1999-2000 Gender Equity R&porb (2002) at 20). Moreover, women’s overall participation in intercollegiate sports remains below pre-Title IX male participation. Id. at 14. Although Title IX’s application to collegiate athletic programs which do not receive direct financial assistance from the federal government was once in question, see Grove City Coll. v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), the Civil Rights Restoration Act of 1987 firmly re-established institution-wide coverage, making it crystal clear that Title IX applies to athletic programs operated by any school receiving federal funding for any of its educational programs and activities, and not just to those athletic programs which directly received federal dollars. Pub.L. No. 100-259, 102 Stat. 28 (1988). In so doing, Congress re-emphasized the importance of Title IX as a tool for creating a more level playing field for women. See, e.g., 130 Cong. Rec. $12,642 (daily ed. Oct. 2, 1984) (statement of Sen. Byrd) (highlighting past discrimination against women athletes); 130 Cong. Rec. $11,253 (daily ed. Sep. 17, 1984) (statement of Sen. Hatch) (emphasizing the importance of Title IX to ensuring development of women athletes); 130 Cong. Rec. $2,267 (daily ed. Mar. 2,1984) (statement of Sen. Riegle) (pointing to extensive evidence of sex discrimination in education and athletics). Since that time, Title IX, its regulations, and the 1979 Policy Interpretation have survived constitutional challenges in no fewer than eight federal Circuits. See Chalenor v. Univ. of N.D., 291 F.3d 1042 (8th Cir.2002); Pederson v. La. State Univ., 213 F.3d 858, 879 (5th Cir.2000); Neal v. Bd. of Tr. of the Ca. State Univ., 198 F.3d 763, 770 (9th Cir.1999); Cohen II, 101 F.3d 155, 170; Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 274-75 (6th Cir.1994); Kelley v. Bd. of Tr., Univ. of Ill., 35 F.3d 265, 270 (7th Cir.1994); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir.1993); Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 171 (3d Cir.1993); Cohen I, 991 F.2d 888. In each of these cases, the regulatory pronouncements challenged here, whether raised offensively or defensively, were found to be consistent with the Equal Protection component of the Due Process Clause of the Fifth Amendment, as well as with the statute itself, and thus entitled to deference by the courts. See, e.g., Horner v. Ky. High Sch. Ass’n, 43 F.3d at 273; Cohen I, 991 F.2d at 896-97, 899-900. One Circuit Court went so far as to find that the third prong of the Three Part Test “draws its essence from the statute.” Cohen I, 991 F.2d at 899 (noting that, in the overall context of the statute and regulations, “[w]hile any single element of this tripartite test, in isolation, might not achieve the goal set by the statute, the test as a whole is reasonably constructed to implement the statute. No more is exigi-ble.”). Moreover, upon consideration of many of the same arguments advanced by plaintiffs here, courts have held that the 1979 Policy Interpretation and the 1996 Clarification do not establish “quotas” or impermissibly discriminate against men or men’s teams. See, e.g., Cohen II, 101 F.3d at 169-70, 172, 176, 184-85 (“Title IX is not an affirmative action statute; it is an anti-discrimination statute .... No aspect of the Title IX regime at issue in this case— inclusive of the statute, the relevant regulation, and the pertinent agency documents [including the 1979 Policy Interpretation and the 1996 Clarification] — mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals. Like other anti-discrimination statutory schemes, Title IX permits affirmative action.”); see also Chalenor v. Univ. of N.D., 291 F.3d at 1043; Pederson v. La. State Univ., 213 F.3d at 878-79; Kelley v. Bd. of Tr., 35 F.3d at 271. These cases are easily divided into two distinct categories. First, there are those cases most characteristic of standard Title IX enforcement, in which, pursuant to Title IX’s implied private right of action against a funded institution for violation of the statute, women, as the underrepresented sex in an institution’s athletic program, challenged some conduct on the part of the school which adversely affected their opportunities to participate in athletics. See, e.g. Pederson v. La. State Univ., 213 F.3d at 864; Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d at 268, 270; Roberts v. Colo. State Bd. of Agric., 998 F.2d at 826; Cohen I, 991 F.2d at 892-93, 905. In such cases, educational institutions have raised challenges to the 1975 Regulations and 1979 Policy Interpretation, and specifically, the Three Part Test, as defenses. In so doing, they have argued that the 1979 Policy Interpretation and its Three Part Test go beyond the statute, exceed the agency’s authority, and violate Equal Protection principles by discriminating against the overrepresented sex, or men. See, e.g., Pederson v. La. State Univ., 213 F.3d at 878; Cohen I, 991 F.2d at 899-901; Roberts v. Colo. State, 998 F.2d at 826. Pursuant to the Supreme Court’s decisions in Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) and Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), courts adjudicating such cases accord considerable deference to DoE’s interpretation of the statute, as manifested in the 1975 Regulations and 1979 Policy Interpretation. See Cohen I, 991 F.2d at 895 (“The degree of deference is particularly high in Title IX cases because Congress explicitly delegated to the agency the task of prescribing standards for athletic programs under Title IX;” citing to 1974 Education Amendments);- see also Roberts v. Colo. State, 998 F.2d at 828. The Three Part Test has consistently been found to be worthy of such deference, as well as enforcement, based on findings that it does not violate the statute or regulations, exceed the agency’s statutory authority, or offend constitutional principles of Equal Protection. Cohen II, 101 F.3d at 172-73, 175; Cohen I, 991 F.2d at 900-01. The second category of cases, more frequent as of late, involves challenges brought by male athletes who contend that actions taken by educational institutions, in some cases in response to findings by DoE’s Office of Civil Rights that their programs did not afford women equal athletic opportunities, violate Title IX and constitutional Equal Protection principles by impermissibly discriminating against men. See, e.g., Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d at 609-10; Chalenor v. Univ. of N.D., 291 F.3d at 1042, 1043; Boulahanis v. Bd. of Regents, 198 F.3d at 634-36; Neal v. Bd. of Tr. of Cal. State Univ., 198 F.3d at 763, 765; Kelley v. Bd. of Tr., 35 F.3d at 265, 267, 270; Williams v. Sch. Dist. of Bethlehem, 998 F.2d at 168, 170. In such cases, notwithstanding contentions that DoE’s regulatory pronouncements were not entitled to deference because they were contrary to the statute, courts have also afforded “appreciable deference” to the agency’s interpretation of the 1975 Regulations embodied in the 1979 Policy Interpretation and, where before the court, the 1996 Clarification. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d at 614-15; Chalenor v. Univ. N.D., 291 F.3d at 1046; Boulahanis v. Bd. of Regents, 198 F.3d at 637-38; Neal v. Bd. of Tr. of Cal. State Univ., 198 F.3d at 770-71; Kelley v. Bd. of Tr., 35 F.3d at 270; Williams v. Sch. Dist., 998 F.2d at 171. Deference in these cases is also premised on explicit findings that the 1975 Regulations are neither “arbitrary .. .- [njor manifestly contrary to the statute,” and that the 1979 Policy Interpretation is a reasonable interpretation of those regulations. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d at 614-15; Chalenor v. Univ. N.D., 291 F.3d at 1046-47; Neal v. Bd. of Tr., 198 F.3d at 771; Kelley v. Bd. of Tr., 35 F.3d at 270-72 (quoting Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 839, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). With respect to the Equal Protection arguments made by male plaintiffs, courts have found collateral attacks on Title IX and its regulations through challenges to university action taken in compliance therewith to be impermissible, and direct challenges to Title IX and the 1975 Regulations as violative of the Constitution to be without merit. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d at 613-14; Neal v. Bd. of Tr., 198 F.3d at 772-73; Boulahanis v. Bd. of Regents, 198 F.3d at 639; Kelley v. Bd. of Tr., 35 F.3d at 272. Noting that, “[e]ven absent a specific finding that discrimination has occurred, remedial measures mandated by Congress are ‘constitutionally permissible to the extent that they serve important governmental objectives ... and are substantially related to achievement of those ends,’ ” courts have found both prongs of the intermediate scrutiny standard to have been satisfied by the implementation of Title IX under the 1975 Regulations and 1979 Policy Interpretation. Boulahanis v. Bd. of Regents, 198 F.3d at 639; Kelley v. Bd. of Tr., 35 F.3d at 272. Regardless of whether the plaintiffs were women or men alleging discrimination on the basis of sex in the provision of athletic opportunity, in each of these cases the defendant was a federally funded institution, be it a secondary school, athletic association, college, or university. Where an agency’s authority to promulgate specific regulations pursuant to Title IX has been challenged, the plaintiff has been a regulated party or association of regulated parties. See, e.g., N. Haven Bd. of Educ. v. Bell, 456 U.S. at 512, 517, 102 S.Ct. 1912. (challenge to HEW’s authority to issue regulations governing educational institutions’ employment practices pursuant to Title IX); Nat’l Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382 (10th Cir.1980); Romeo Cmty. Sch. v. U.S. Dept. of H.E.W., 600 F.2d 581 (6th Cir.1979). The parties have cited no cases, and indeed this Court is aware of none, in which similarly situated plaintiffs have directly challenged the validity of the 1975 Regulations, 1979 Policy Interpretation, or 1996 Clarification by way of an action brought against the Department of Education, or its predecessor HEW. See Tr. Hr’g 10/15/02 at 80. III. Plaintiffs’ Claims A. Statutory and Constitutional Claims Essentially, plaintiffs’ complaint is that DoE’s interpretation of Title IX and the 1975 Regulations, as memorialized in the 1979 Policy Interpretation and 1996 Clarification, have “directly and indirectly ... reduced (and continue to limit) participation opportunities for male athletes” by eliminating men’s athletic teams altogether or by “arbitrarily” limiting the number of participants on men’s teams. First Am. Compl.'N48. Plaintiffs contend that this result has been accomplished by means of DoE’s initiation of “hundreds of administrative enforcement actions and investigations at institutions where athletic participation rates did not match enrollment rates by gender, but where no student has alleged discrimination.” Id. They allege that these enforcement actions and investigations, allegedly initiated with respect to institutions which did not comply with Title IX under the first prong of the Three Part Test, have led to “negotiated settlements with ... institutions that reduced male participation opportunities.” Id. Finally, plaintiffs contend that, even in the absence of investigations and enforcement action's by DoE, institutions have, in an effort to avoid such actions, voluntarily reduced men’s participation opportunities. Id. Specifically, plaintiffs allege that Buck-nell University eliminated its men’s intercollegiate wrestling team effective in the 2002-03 academic year solely to bring the institution in compliance with Title IX, and in particular with the first prong of the Three Part Test. First Am. Compl. ¶ 50. Plaintiffs further assert that the University expressly articulated this rationale for its action in a press release issued on May 2, 2001. Id. Plaintiffs further assert that Marquette University eliminated its men’s intercollegiate wrestling team, notwithstanding the fact that it had been privately funded since 1993, in order to comply with Title IX, and that the University’s athletic director “indicated that Marquette might bring back its wrestling program if the legal requirements changed.” First Am. Compl. ¶ 51. Finally, plaintiffs contend that Yale’s decision to demote its intercollegiate men’s varsity wrestling team to “club status,” ostensibly for budgetary reasons despite an offer to endow the team, was made “because of Title IX.” First Am. Compl, ¶ 52. In Counts I and II of their First Amended Complaint, plaintiffs allege, referring to the 1979 Policy Interpretation’s Three Part Test and the 1996 Clarification, that neither Title IX nor its implementing regulations authorize DoE to issue a “rule” which permits institutions to engage in gender-conscious cutting or capping of teams to achieve compliance with regulatory standards. Plaintiffs further contend that such a rule permits intentional sex-based discrimination which is not substantially related to the achievement of an “important government objective,” thereby violating both constitutional Equal Protection principles and the language of Title IX. Plaintiffs also object to the comparison of gender proportions in the general student body and in athletic programs embodied in the first prong of the Three Part Test, arguing that the comparison contravenes the language of the statute and regulations. Accordingly, plaintiffs maintain that the 1979 Policy Interpretation and the 1996 Clarification violate Title IX, the 1975 Regulations, and principles of Equal Protection embodied in the Due Process Clause of the Fifth Amendment of the U.S. Constitution. Plaintiffs raise several additional claims which essentially take a different procedural route to make the same arguments on the merits. B. Unlawful Denial of Petition to Amend or Repeal In addition to the facial challenge to the 1979 Policy Interpretation and 1996 Clarification made in the first two counts of plaintiffs’ First Amended Complaint, plaintiffs also challenge DoE’s refusal to amend or repeal the Three Part Test despite a request to do so made by plaintiff NWCA during the 1996 Clarification comment process. Specifically, plaintiffs allege that a letter from Plaintiff NWCA, addressed to DoE’s Assistant Secretary for Civil Rights, and written in response to the proposed 1996 Clarification, is a “petition to amend or repeal” as that term is used under the APA, 5 U.S.C. § 553(e) (2003). First Am. Compl. ¶ 74. Plaintiffs further argue that, by issuing the final 1996 Clarification, DoE summarily denied NWCA’s petition, and that such denial constituted final agency action that was “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law,” thus violating the APA. Id. ¶ 77. C. Abdication Claim The First Amended Complaint also alleges in Count IV that, by promulgating and enforcing the 1979 Policy Interpretation and the 1996 Clarification, which permit “gender-conscious cutting and capping,” DoE has abdicated its statutory-duty to enforce Title IX’s prohibition against intentional discrimination based on sex. Plaintiffs contend that such “abdication” of DoE’s enforcement responsibilities constitutes final agency action subject to judicial review. D. Procedural Defects Finally, plaintiffs contend that, by dint of procedural defects, DoE’s implementing regulations, 34 C.F.R. § 106.1-106.71, the 1979 Policy Interpretation, and the 1996 Clarification are null and void, and are of no force or effect. Counts V, VI, and VII allege that DoE implementing regulations (as opposed to the HEW implementing regulations), the 1979 Policy Interpretation and 1996 Clarification constitute new “implementing regulations” or substantive rules which are null and void because they were not approved by the President or his designate as expressly required by the language of Title IX, 20 U.S.C. § 1682, and because they were not promulgated pursuant to the requisite notice and comment rulemaking procedures. Plaintiffs contend that these alleged constitutional, statutory, and regulatory violations on the defendant’s part can be redressed by entry of a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, the APA, 5 U.S.C. § 706(2), and Fed.R.Civ.P. 57, finding that: I. Title IX does not authorize adoption of a “disparate impact” standard as a surrogate for intentional discrimination; II. DoE is prohibited from requiring or authorizing educational institutions to engage in “gender-conscious” cutting or capping to meet a disparate impact standard; III. to the extent that gender conscious decisions regarding athletic programs are permitted, educational institutions are to use athletic interest and ability, not enrollment, as the relevant population; IV. the relevant unit of “athletic opportunity” under the regulations is a spot on a team, not an athlete on a team; V. DoE unlawfully denied plaintiff NWCA’s petition to amend or repeal the “Three-Part Test” and to revise its enforcement policies to reflect the manifestly changed circumstances in 1996; VI. DoE, by its 1996 Clarification consciously and expressly adopted a general policy which abdicates its statutory duty to prevent intentional gender discrimination; VII. DoE’s Title IX implementing regulations, the 1979 Policy Interpretation, and the 1996 Clarification are null and void. Additionally, plaintiffs request that this Court issue an order I. vacating the 1996 Clarification and the “Three-Part Test” as arbitrary and capricious, and promulgated without following the procedures required by law; II. instructing DoE to conduct notice-and-comment rule-making to amend its Title IX implementing regulations with respect to intercollegiate athletics in a manner consistent with Title IX, the Constitution, and the declaratory relief requested; III. retaining this Court’s jurisdiction over the matter until such rules are promulgated and become effective; IV. staying “all disparate impact components” of DoE’s Title IX “rules” concerning athletics until new rules are promulgated; V. Awarding plaintiffs attorneys’ fees and costs. IV. Motion to Dismiss Defendant moves to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1), alleging that this Court lacks subject matter jurisdiction over plaintiffs’ claims. Specifically, defendant contends that plaintiffs lack standing under Article III of the United States Constitution because they cannot demonstrate that the relief they seek will redress the injuries they claim. Def.’s Mot. to Dismiss at 2. In the alternative, the defendant submits that, even if this Court were to find standing, plaintiffs’ constitutional and statutory claims fall outside the scope of the waiver of sovereign immunity embodied in the APA and the applicable statute of limitations, plaintiffs fail to allege facts sufficient to establish jurisdiction under the APA provision governing petitions to amend or repeal regulations, 5 U.S.C. § 563(e), and all of plaintiffs’ remaining claims are time-barred to the extent they concern the 1979 Policy Interpretation. Id. at 3-4, 25-30, 31-33. This Circuit has recently reiterated the standard governing motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1): A complaint may be dismissed for lack of subject matter jurisdiction 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.’ ” In our review, this court assumes the truth of the allegations made and construes them favorably to the pleader. Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338 (D.C.Cir.2003). In the Rule 12(b)(1) context, the plaintiff bears the burden of establishing the Court’s jurisdiction. See, e.g., Tripp v. Executive Office of the President, 200 F.R.D. 140, 142 (D.D.C.2001); Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999). In so doing, the plaintiff may rely on, and the Court may consider, materials outside of the pleadings without converting a motion to dismiss to one for summary judgment. See Fed.R.Civ.P. 12(b)(1); Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) (“[W]hen a question of the District Court’s jurisdiction is raised, either by a party or by the court on its own motion ... the court may inquire, by affidavits or otherwise, into the facts as they exist.”); Teva Pharmaceuticals, USA, Inc. v. U.S. Food and Drug Admin., 182 F.3d 1003, 1008 (D.C.Cir.1999); Artis v. Greenspan, 158 F.3d 1301, 1305-06 (D.C.Cir.1998). A. Motion to Amend Complaint Several weeks after oral argument was heard on defendant’s motion to dismiss, plaintiffs filed a motion for leave to file a Second Amended Complaint (“PL’s Mot.”). In their proposed Second Amended Complaint, plaintiffs seek to expand their allegations in several key areas. First, .they seek to add the Secretary of Education and the Assistant Secretary of Civil Rights, in their official capacities, as defendants to this action. Proposed Second Amended Complaint for Declaratory and Injunctive Relief (“Second Amended Compl.”) ¶ 1. Second, plaintiffs request leave to amend their allegations regarding the composition of plaintiff associations. For instance, plaintiffs now seek to allege that plaintiff NWCA, in addition to “representing the interests of collegiate and scholastic wrestling coaches,” First Am. Compl. ¶ 4, now includes among its membership not only “member coaches,” id., but also “coaches, alumni, and the general public ... [and] federally funded colleges, universities, high schools, and associations of high schools that are- directly affected by the Title IX rules challenged in this action.” Second Am. Compl. ¶ 4. In support of these proposed allegations, plaintiffs submit an affidavit from Patrick A. Tocci, II NWCA’s Director of Administration, who affirms that NWCA counts among its members colleges, universities, high schools and high school associations in more than 35 states, which, upon information and belief, receive federal funding. Tocci Decl. ¶ 3. Additionally, Mr. Tocci specifically • alleges that Muhlenberg College and Northwestern University are members of plaintiff NWCA. Id. ¶ 4, Supp. Tocci Decl. ¶ 3. Also, plaintiffs wish to add that Bueknell Wrestling’s members include Jacob E. O’Donnell, Class of ’05, who was a member of Bucknell’s men’s intercollegiate wrestling team during the 2001-02 season, and who wishes to compete for the University during the 2002-03, 2003-04, and 2004-05 seasons. Third, plaintiffs’ proposed Second Amended Complaint seeks to add, as sources of authority for granting the requested relief, 28 U.S.C. §§ 1331, 1343(a)(4), 1346(a)(2), 1361, the Acts of March 3, 1863, 12 Stat. 762, and June 25, 1936, 49 Stat. 1921 (as amended), D.C.Code § 11-501, and the Court’s equitable powers. Fourth, the proposed Second Amended Complaint would amend Count IV to include a claim that the promulgation of the 1979 Policy Interpretation and 1996 Clarification not only represent an abdication of DoE’s obligation to enforce Title IX’s prohibition against sex-based discrimination, but also constitute ultra vires acts undertaken by the agency. Second Am. Compl. ¶¶ 103-05, Prayer for Relief ¶ 126 A(vii). Finally, plaintiffs’ Second Amended Complaint seeks to add numerous and significant factual allegations. For instance, the Second Amended Complaint would include substantially expanded allegations regarding DoE’s enforcement actions since 1996. Second Am. Compl. ¶¶ 58-61, 63. Specifically, plaintiffs would allege that, on information and belief, on or about January 5, 2000, [DoE] negotiated and entered into a compliance agreement with Northwestern University that requires Northwestern either to meet prong one of the Three-Part Test ... by June 30, 2002 or to conduct a survey of the interests and abilities of female (but not male) students to demonstrate compliance with the Three-Part Test, as revised by the 1996 Clarification ... As a result of the compliance agreement, with [DoE’s] knowledge, monitoring, and assent, Northwestern has imposed caps on men’s teams that affect members of Plaintiffs NWCA and CSC, including without limitation the men’s swimming and wrestling coaches at Northwestern. Second Am. Compl. ¶ 61. Plaintiffs would also rely on a report by the General Accounting Office, which they contend documents acknowledgments by educational institutions, some of which are members of plaintiff organizations, that men’s teams are cut in order to comply with the Three Part Test, as well as recent Circuit Court opinions noting that defendant educational institutions justified elimination of men’s athletic programs as part of an effort to comply with the Three Part Test. Second Am. Compl. ¶¶ 64, 69-70. Additionally, plaintiffs now wish to contend that the 1996 Clarification represented the first pronouncement by DoE that it, like its predecessor HEW, would evaluate interscholastic athletic programs’ compliance with Title IX under the Three Part Test. Second Am. Compl. ¶¶ 52, 79, 121. Similarly, they contend that the 1996 Clarification represents the agency’s first acknowledgment subsequent to the U.S. Supreme Court’s decision in Grove City v. Bell and the enactment of the Civil Rights Restoration Act that the Three Part Test applies to athletic departments which do not directly receive federal funds. Second An. Compl. ¶ 53. The Second Amended Complaint also submits that the 1996 Clarification’s interpretation of the third prong of the Three Part Test -is substantially different from that contained in the agency’s 1980 enforcement manual, prepared for and used by DoE investigators. Second Am. Compl. ¶¶ 54, 80,122. Plaintiffs further wish to allege that, although DoE prepared enforcement manuals in 1980 and 1990, it did not publish them or incorporate them by reference in the Federal Register. Second Am. Compl. ¶ 42. Plaintiffs also seek to include allegations regarding the procedure by which the 1996 Clarification was developed and disseminated, noting that DoE did not follow any procedure previously published in the Federal Register with respect to the process by which the final 1996 Clarification was developed, nor did it publish the final 1996 Clarification in the Federal Register. Second Am. Compl. ¶¶ 55, 56, 99. Finally, plaintiffs wish to add an allegation that “institutions, athletic directors, and coaches who are members” of plaintiff organizations must engage in conduct which violates-Title IX in order to comply with DoE’s interpretation of the statute and regulations, but cannot “sue them-’ selves” to obtain a remedy for this alleged injury to them. Second Am. Compl. ¶ 71. They also seek to contend that enforcement actions against schools are not effective remedies for their student-athlete members because “schools typically announce cutting and capping decisions in the Spring after the deadline for applying to transfer.” Fed.R.Civ.P. 15(a) governs plaintiffs’ motion for leave to file a Second Amended Complaint. Under that Rule, in the current procedural posture, plaintiffs may only amend their complaint upon leave of the court or by written consent of the adverse party. Fed.R.Civ.P. 15(a). However, the Rule mandates that “leave shall be freely given when justice so requires.” Id. The D.C. Circuit has provided further guidance with respect to the application of this standard, holding that “a district court should grant leave to amend a complaint ‘[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, futility of amendment, etc.’ Within these bounds, a district court has discretion to grant or deny leave to amend under Rule 15(a).” Atchinson v. District of Columbia, 73 F.3d 418, 425-26 (D.C.Cir.1996) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). It is clear from the language cited above that Fed.R.Civ.P. 15(a) and D.C. Circuit precedent do not compel the grant of leave to amend a complaint in every instance. See Graves v. United States, 961 F.Supp. 314, 317 (D.D.C.1997). The Court need' only base its ruling on a valid ground when exercising its discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir.1996). “Courts may deny a motion to amend a complaint as futile ... if the proposed claim would not survive a motion to dismiss.” James Madison Ltd. v. Ludwig, 82 F.3d at 1099; see also Atchinson v. District of Columbia, 73 F.3d at 425; Moldea v. N.Y. Times, 22 F.3d 310, 319 (D.C.Cir.1994); Price v. Phoenix Home Life Ins. Co., 44 F.Supp.2d 28, 33 (D.D.C.1999), aff'd, 203 F.3d 53, 1999 WL 1021927 (D.C.Cir.1999) (table, text in Westlaw); Mittleman v. United States, 997 F.Supp. 1, 10 (D.D.C.1998); Graves v. United States, 961 F.Supp. at 317; Monroe v. Williams, 705 F.Supp, 621, 623-24 (D.D.C.1988) (citing cases). For instance, in James Madison Ltd., the D.C. Circuit upheld the District Court’s denial of a motion for leave to amend a complaint to add counts challenging on Due Process grounds the statute under which the Federal Deposit Insurance Corporation placed several banks under receivership. James Madison Ltd. v. Ludwig, 82 F.3d at 1099. The court found that, on the facts alleged in the complaint, there had been no due process violation. Id. Similarly, The D.C. Circuit has upheld denial of permission to amend a complaint to assert claim of false fight invasion of privacy where plaintiffs claim for defamation could not survive summary judgment. Moldea v. N.Y. Times,