Biediger v. Quinnipiac Univ. - 691 F.3d 85 (2d Cir. 2012)

Rule:

Once the numbers of real athletic participation opportunities afforded men and women have been determined, the next step of Title IX of the Education Amendments of 1972 effective-accommodation analysis considers whether the numbers are substantially proportionate to each sex's enrollment. The Department of Education's Office of Civil Rights (OCR) has not construed substantial proportionality to require exact proportionality. Rather, substantial proportionality is determined on a case-by-case basis in light of the institution's specific circumstances and the size of its athletic program. As a baseline, OCR will consider substantial proportionality achieved if the number of additional participants necessary required for exact proportionality would not be sufficient to sustain a viable team. OCR affords schools considerable flexibility and choice in deciding how to provide substantially proportionate athletic opportunities to students of both sexes, including by eliminating teams, placing caps on its rosters, or expanding athletic opportunities through new sports.

Facts:

In March 2009, Quinnipiac University announced that in the 2009-10 academic year, it would eliminate its varsity sports teams for women's volleyball, men's golf, and men's outdoor track and field, while simultaneously creating a new varsity sports team for women's competitive cheerleading. Plaintiffs, five Quinnipiac women's volleyball players and their coach, Robin Sparks, filed the present action, charging the university with violating Title IX by denying women equal varsity athletic participation opportunities, and seeking an injunction that, among other things, prevented Quinnipiac from eliminating its women's volleyball team. The district court preliminarily enjoined Quinnipiac from withdrawing support from its volleyball team, finding that Quinnipiac systematically and artificially increased women's teams' rosters and decreased men's teams' rosters to achieve the appearance of Title IX compliance. After conducting a bench trial on plaintiffs’ claim of disproportionate allocation of athletic participation opportunities, the district court granted permanent injunctive relief. The university appealed. 

Issue:

Did the university’s sex-based treatment of varsity athletes provide its female students with genuine athletic participation opportunities substantially proportionate to their enrollment, thereby rendering the grant of permanent injunctive relief in favor of the plaintiffs an error? 

Answer:

No.

Conclusion:

The court affirmed the judgment of the district court, finding that the totality of the circumstances suggested that the 60 positions on the university's indoor and outdoor track team rosters were not reflective of genuine participation opportunities in these sports, but were inflated to afford mandated year-round training for the 18 members of the women's cross-country team. According to the court, the district court was correct not to count the 30 roster positions assigned to competitive cheerleading in determining the number of genuine varsity athletic participation opportunities that the university afforded female students. There was a 3.62% disparity between the percentage of women students and the percentage of women athletes on varsity sports. The court held that in order for an athlete to be counted, he or she must be afforded a participation opportunity that was real, not illusory, in that it was offering the same benefits as would be provided to other bona fide athletes.