The Ninth Circuit Provides Test for Determining Whether Schools Effectively Accommodate the Interests and Abilities of Members of Both Genders in Athletic Programs

Lozano Smith Client News Brief
October 2014
Number 74

A federal appeals court has held that a California school district violated Title IX of the Education Amendments of 1972 (Title IX) by failing to provide equal athletic opportunities for female athletes and retaliating against the female athletes by firing the softball coach, among other actions. This case is significant because it provides specific guidance on a school district's obligation to provide equal athletic opportunities under Title IX.

In Ollier v. Sweetwater Union High School District (September 19, 2014) __ F.3d __ 2014 WL 4654472, female student athletes brought a class action suit against the school district alleging that they had experienced unequal athletic opportunities, including unequal participation opportunities in violation of Title IX. To determine whether the school had unequal athletic opportunities, the Ninth Circuit Court of Appeals considered "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes." (34 Code of Fed. Reg. § 106.41, subd. (c)(1).) The court adopted a three-part test to determine whether an athletic program effectively accommodates the interests and abilities of students:

  1. Whether participation opportunities provided to male and female students are provided in numbers substantially proportionate to their respective enrollment.

  2. Whether the school has a history and continuing practice of expanding its program in response to developing interests and abilities among members of that gender.

  3. Whether the school has fully and effectively accommodated the interest and abilities of the gender.

An athletic program effectively accommodates the interests and abilities of both genders if it complies with any one of the above-described prongs.

For the first prong of the test, there is no magic number for achieving "substantially proportionate" participation between males and females. As a general rule, a court will find that participation is substantially proportional, and therefore in compliance with Title IX, if the number of additional athletes required to be exactly proportionate would not support the creation of a new sports team. At this high school, 47 more females would have to participate in athletics in order to have exact proportionality to males. The court found that this number was sufficient to support a viable team and, thus, overall female athletic participation at the school was not substantially proportionate.

For the second prong of the test, the school argued that it had a history and continuing practice of program expansion. In the last ten years, the school increased the number of athletic teams on which females could play. The court determined that it is not the number of teams that is controlling, but the number of athletes. Over four school years, the number of female athletes varied from 172, to 146, to 174, to 149. The court found that this dramatic fluctuation in participation did not demonstrate a history and continuing practice of program expansion.

The third prong of the test assesses whether the gender imbalance is merely a reflection of the genders' lack of interest in athletics. The high school had recently eliminated its field hockey team. The court concluded that where a school has eliminated a viable athletic team it is presumed that there is sufficient interest, an ability to sustain a team in that sport, and an expectation of competition, unless the school presents strong evidence that this is not the case.

Since the school district was not able to satisfy any one of the prongs, the court concluded that the school district did not effectively accommodate the interests and abilities of female athletes.

The court also upheld the athletes' retaliation claim. The court found that: 1) the students engaged in a protected activity because a parent complained about Title IX violations to the athletic director; 2) the students suffered an adverse action because the school fired the softball coach and replaced him with someone less experienced, canceled the team's annual awards banquet, and did not allow the team to participate in a tournament attended by college recruiters; and 3) there was a causal connection between the protected activity and adverse action. The school presented non-retaliatory reasons for firing the coach, including that the coach made several errors in performing his duties, and that the school wanted a coach that was a certificated employee. However, the court determined that the timing of the actions and the inconsistent reasons provided by the district was evidence of after the fact rationalization.

School districts should assess whether their athletic programs provide equal athletic opportunities for members of both sexes. If athletic opportunities are not substantially proportionate, the school district should develop a plan for expanding its program and assessing the developing interest and abilities of the gender that is underrepresented.

If you have any questions regarding Title IX or any other student matters, please contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.