How close does a school have to be to comply with the “substantial proportionality” prong of Title IX’s three-part athletic participation test? Can schools count cheerleading as a sport under Title IX? When does roster management turn into unlawful manipulation of athlete counts? Are you an inquiring mind who wants to know? Then check out the “friend of the court” brief we filed today, along with 20 other women’s and civil rights groups, in the Second Circuit case of Biediger v. Quinnipiac University.

Our brief addresses the key issues above, which are ones that the appellate courts have yet to delve into, so it will be closely watched by schools, civil rights lawyers, and others around the country. The case was brought by female volleyball athletes who sued their school when it decided to drop their team.  Quinnipiac argued that it could instead count its newly formed competitive cheer squad as a varsity team and be in compliance with Title IX. The district court disagreed, finding that cheer did not meet the Department of Education’s criteria for when an activity can be counted as a sport. The court also rejected Quinnipiac’s claim that it was meeting prong one of Title IX’s three-part participation test. Following the Department of Education’s guidelines, the court held that a 3.62% gap between female enrollment and participation was not close enough because the gap translated into 38 additional spots for women, which was more than enough to field an additional team. Finally, the district court found that Quinnipiac manipulated its rosters to inflate the number of female athletes and deflate the number of male athletes in ways that gave the illusion of compliance but deprived women of genuine participation opportunities.

We urged the Second Circuit to affirm the district court’s decision, and now the waiting begins.

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