The Ninth Circuit US Court of Appeals, in Ollier v. Sweetwater Union High School District, recently affirmed a district court’s judgment granting declaratory and injunctive relief to the plaintiffs in a class action suit brought pursuant to Title IX, alleging inequity in the providing of equal athletic opportunities to female students. In the process of granting relief to the plaintiffs and rejecting the defendants’ arguments, the Ninth Circuit Court presents a useful primer on Title IX analysis concerning equal opportunities for female athletes.

In Ollier the plaintiff students alleged that the school district defendants intentionally discriminated against female students at Castle Park High School by unlawfully failing to provide female student athletes equal treatment and benefits as compared to male athletes. Specifically, the plaintiffs alleged inequitable facilities, equipment and supplies, transportation vehicles, coaches, scheduling, publicity, funding and athletic participation opportunities. In addition, the plaintiffs also accused the defendant school district of retaliation based on the firing of the softball coach following the raising of concerns over athletic equality.

At the trial court level, the defendants were found to have violated Title IX by failing to provide equal treatment and benefits in nine different areas and in retaliating against the plaintiffs by firing the softball coach after a parent had complained to school administrators about inequalities for girls in the school’s athletic programs.

In analyzing the district court’s granting of summary judgment, the Ninth Circuit utilized a three-part test to determine whether an institution is complying with the “effective accommodation” requirement of Title IX: (1) whether participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; (2)  where the members of one sex are underrepresented, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the athletes of that sex; and (3) where an institution cannot show a continuing practice of program expansion, whether it can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

As an initial matter, the Court rejected the school district’s argument that Title IX should be applied differently to high schools than it is to colleges. In performing its analysis of whether participation opportunities are substantially proportionate to enrollments, the Court first began with a determination of the number of participation opportunities afforded to male and female athletes. In performing this analysis, it rejected the defendants’ argument that unfilled slots be counted, and considered only actual athletes.

In considering whether the number of participation opportunities were “substantially proportionate,” the Court noted that exact proportionality is not required, nor is there a “magic number” at which substantial proportionality is achieved. However, the Court did hold that, as a general rule, there is substantial proportionality if the number of additional participants required for exact proportionality “would not be sufficient to sustain a viable team.” Utilizing this standard of analysis, the Court quickly determined that Castle Park High School did not offer substantially proportionate participation opportunities to female athletes.

After concluding that there was a lack of proportionate participation, the Court applied the second prong of the test, and found that there was no history or continuing practice of program expansion of women participation opportunities, pointing to female athlete participation numbers that fluctuated and did not steadily progress. The Ninth Circuit then turned to the third prong and examined whether or not there was evidence that female students had been fully and effectively accommodated by the present program. In other words, a school where fewer girls than boys play sports does not violate Title IX if the imbalance is the result of girls’ lack of interest in athletics.

In applying this prong of the test, the Court relied upon 1996 guidance issued by the Department of Education. In evaluating compliance under this third prong, a court must determine whether there is an: (1) unmet interest in a particular sport; (2) ability to support a team in that sport; and (3) a reasonable expectation of competition for the team. A school district, such as Sweetwater Union, would be Title IX compliant unless all three conditions are present.

In examining the evidence, the Court noted that it is the school district, not the plaintiffs, that must gauge or survey the interest of female students in any particular sport, and rejected the defendants’ arguments to the contrary.  Additionally, the fact that the school district had previously cut the field hockey program, not because of a lack of interest or participation but because of any inability to find a coach was found as evidence of an “unmet interest in a particular sport.” Once again, the Ninth Circuit found the arguments of the defendants lacking in a factual foundation.

In applying its analysis to the Sweetwater Union High School District situation, the Court outlined a path for school districts to follow to comply with the requirements of Title IX and the provision of equal opportunities to female student athletes. But this compliance requires concrete measures and not just lip service, as the Ninth Circuit expressly affirmed the proposition that “Title IX levels the playing fields for female athletes.” For school districts wrestling with Title IX issues concerning equal athletic opportunities, the Ninth Circuit’s opinion in Ollier provides a useful primer for a deeper understanding this often complex issue.

Leave a Reply

Your email address will not be published. Required fields are marked *