Recently, the Ninth Circuit issued an important decision, Ollier v. Sweetwater Union School District, that will make it easier for high schools to be sued under Title IX of the Education Amendments of 1972 if fewer female than male students participate in interscholastic athletics.

There are regulations interpreting Title IX that forbid sex discrimination and require “equal opportunity” in “interscholastic” athletics that apply to K-12 schools and universities alike. But these regulations do not incorporate the controversial three-part test set forth in the Department of Education Office for Civil Rights’s 1979 guidance document titled “Policy Interpretation: Title IX and Intercollegiate Athletics.” Although this 1979 guidance theoretically gives colleges three different methods of demonstrating that they are in compliance with Title IX in athletics,  most institutions in practice need to demonstrate that “intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.” (ital.. added.)

Note the word “intercollegiate” in the title of this document. Whether “intercollegiate” means “applies to high schools” seems like an easy question, almost as simple as whether “state” means “federal” (oh… wait, never mind.)  Yet the Ninth Circuit ruled here that the more stringent three-part test did in fact apply to Castle Park High School without considering the Policy Interpretation’s limiting title.

Advocacy groups have pushed for the application of the three-part test to K-12 schools for years. Now that there is a new milestone federal circuit court case in their favor, expect the floodgates of Title IX litigation to open.

The Obama Department of Justice is fully behind this push. DOJ filed an amicus brief in support of plaintiffs’ position.

In addition, it is noteworthy that the Ninth Circuit and DOJ as amicus essentially interpret “substantial proportionality” to mean “precise proportionality.” Women made up 45.4%-49.6% of the student body at Castle Park but only 33.4-40.8% of the athletes from 1998 to 2008. In other words, this is not a school district that had few or no athletes, nor one in which aspiring female athletes desperately lacked for role models of the same sex. Rather, this is a situation where the gender numbers failed to wash up exactly right.

Finally, although I confess I am no expert on the standards for admitting expert testimony, I was amused that the Ninth Circuit upheld the exclusion of an expert for the school district because his knowledge of school finance was deemed “irrelevant.” It seems as though in the Ninth Circuit and plaintiffs’s rosy worldview, the financial trade-offs that a school district faces in allocating athletic slots ought not to matter one whit. Unfortunately, they are real, and they often harm the very young women that feminist advocates most want to help.