Appeals Court Ruling Paves Way for Gender Quotas in High School Sports

The followers of the American Sports Council (ASC) will recall that we’ve been warning for years that gender quota activists were setting their sights on applying Title IX’s proportionality rule to high school sports. Now, with a recent federal court ruling, that day has come.

In a September 19, 2014 decision, the US Court of Appeals for the Ninth Circuit affirmed the district court judgment in the case Ollier v. Sweetwater Union High School District.

From the decision:

“The Government’s position rejects Sweetwater’s argument that Title IX should be applied differently to high schools than to colleges, as well as the idea that the district court’s “substantial proportionality” evaluation was flawed.6 We agree with the Government that the three-part test applies to a high school.

This is suggested by the Government’s regulations, See 34 C.F.R. § 106.41(a) (disallowing sex discrimination “in any interscholastic, intercollegiate, club or intramural athletics”), and, accordingly, apply the three-part “effective accommodation” test here. Although this regulation does not explicitly refer to high schools, it does not distinguish between high schools and other types of interscholastic, club or intramural athletics. We give Chevron deference to this regulation. See note 5, supra. See also McCormick ex rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d 275, 300 (2d Cir. 2004) (applying three-part test to high school districts); Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 272–75 (6th Cir. 1994) (same).”

Back in 2011, the ASC sued the Department of Education to prevent the use of strict proportionality in Title IX at the high school level because it violated the Equal Protection Clause of the U.S. Constitution. In 2012, that complaint was dismissed, not on the merits, but based on the court’s position that since the ASC did not suffer any injury due to the Three-Part Test’s application to high school sports, that it did not have standing to sue.

At the time, Joshua Thompson of the Pacific Legal Foundation had this to say about the decision and its implications:

On its face, the Three-Part applies to intercollegiate athletics. Indeed, its actual title is, “A Policy Interpretation: Title IX and Intercollegiate Athletics.” It requires that colleges engage in sex-balancing by requiring institutions to have a proportional representation of male and female athletes at each school. While this alone is constitutionally troubling, the rub with this latest lawsuit is that sex-quota activists have been using the Three-Part Test to force sex-balancing on high schools. The law neither allows this nor was ever designed for this.”

The implications here are profound. In high school, the gender balance of students is essentially 50/50. Despite this, about 1.3 million more boys than girls participate in high school sports. For boys, interscholastic competition is their preferred type of extracurricular activity. Given that most high schools are under extraordinary financial pressures, the easiest way for any school to comply with Title IX’s Three-Part Test will be to limit the number of boys who participate in sports in order to make the numbers balance. That will likely result in roster caps, and eventually, the outright elimination of many teams.

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