Page:Veronica Ollier v. Sweetwater Union High School District (September 19, 2014) US Court of Appeals for the Ninth Circuit.djvu/14

 Plaintiffs, on the other hand, contend that (1) the number of female athletes at Castle Park has consistently lagged behind overall female enrollment at the school—that is, the two figures are not “substantially proportionate”; (2) the number of teams on which girls could theoretically participate is irrelevant under Title IX, which considers only the number of female athletes; and (3) “girls’ interest and ability were not slaked by existing programs.”

The United States as amicus curiae sides with Plaintiffs and urges us to affirm the district court’s award of summary judgment. The Government says that the district court “properly analyzed” Castle Park’s athletic program under the three-part “effective accommodation” test, and that it correctly concluded that Sweetwater “failed to provide nondiscriminatory athletic participation opportunities to female students” at Castle Park. 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. 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