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9th Circuit Backs Girls' Softball Players in Title IX Suit

A federal appeals court has ruled that a California district violated Title IX because one of its high schools provided unequal athletics participation opportunities for girls and because the school retaliated against the girls' softball coach by firing him soon after the sex-discrimination claim was filed.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously upheld a federal district court's 2012 decision against the Sweetwater Union High School District in the San Diego area.

The district court had found that a group of female softball players at Castle Park High School received unequal treatment and benefits in such areas as facilities, equipment, recruiting, training, scheduling, and fundraising.

The lower court had also found that the Sweetwater district had violated Title IX of the Education Amendments of 1972 when it fired Castle Park softball coach Chris Martinez in 2006, just weeks after a father of two softball players complained about unequal conditions. 

The school district appealed the district court's rulings, as well as the lower court's exclusion of certain expert witnesses and other evidence. In the appeal, the female softball players were backed by President Barack Obama's administration. The U.S. Department of Justice said in a brief that it was defending the district court's proper interpretation of the U.S. Department of Education's Title IX guidance on athletic opportunities for girls, which was first issued in 1979 (under the Department of Health, Education, and Welfare) and updated in 1996. 

Under the 1979 test, a federally funded educational institution is in compliance with Title IX when, first, athletic opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; second, where members of one sex are underrepresented, opportunities are expanded; and third, if the institution can show that members of the underrepresented sex have been fully and effectively accommodated by existing programs. A school or college need only meet any one of the three prongs of the test to pass muster.

The 1996 "clarification" gave institutions some breathing room by mandating that they provide "athletic participation opportunities for male and female students in numbers substantially proportionate to their respective full-time enrollments." 

In its Sept. 19 decision in Ollier v. Sweetwater Union High School District, the 9th Circuit court panel upheld the district court on all issues and—significantly for other schools—accepted the Justice Department's arguments that the three-part Title IX test applies to high schools as well as colleges.

The appeals panel noted that at Castle Park High, girls made up as much as 50 percent of the student enrollment in the relevant 10-year period, but at most made up only 41 percent of the athletes.

The school district argued that it complied with Title IX because its expanded the number of girls' athletic teams in the period (from 1998 to 2008), and female participation in sports increased.

"But Sweetwater's methodology is flawed, and its argument misses the point of Title IX," the appeals court said. "The number of teams on which girls could theoretically participate is not controlling under Title IX, which focuses on the number of female athletes." 

Both the district court and the 9th Circuit court held that "substantial proportionality" was the correct test, and that Castle Park High failed to meet the first prong of the test. Also, the district failed the second prong because it had no history of expansion of girls' sports. 

The third prong of the test suggests that 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. But Castle Park High could not meet that prong, either.

"We conclude that Sweetwater has not fully and effectively accommodated the interests and abilities of its female athletes," the 9th Circuit court said.

The court also upheld the retaliation claim involving the former softball coach. The claim was part of the girls' softball players' suit, alleging that they were harmed by the coach's dismissal. 

"With their softball coach fired, [the softball players'] prospects for competing were hampered," the court said. 

The panel quoted from Justice Sandra Day O'Connor's opinion in a 2005 U.S. Supreme Court case, Jackson v. Birmingham Board of Education. (In that case, the court upheld the right of a coach to raise a Title IX sex-discrimination claim on behalf of his players.)

"Teachers and coaches ... are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators," O'Connor had written in the Jackson case. "Indeed, sometimes adult employees are 'the only effective adversar[ies]' of discrimination in schools." 

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