Page:Veronica Ollier v. Sweetwater Union High School District (September 19, 2014) US Court of Appeals for the Ninth Circuit.djvu/17

 lawsuit, the disparities were 6.7 percent (2005–2006), 10.3 percent (2006–2007), and 6.7 percent (2007–2008).

There is no question that exact proportionality is lacking at Castle Park. Sweetwater concedes as much. Whether there is substantial proportionality, however, requires us to look beyond the raw numbers to “the institution’s specific circumstances and the size of its athletic program.” 1996 Clarification. Instructive on this point is the Department of Education’s guidance that substantial proportionality generally requires that “the number of additional participants &hellip; required for exact proportionality” be insufficient “to sustain a viable team.” Biediger, 691 F.3d at 94 (internal quotation marks omitted).

At Castle Park, the 6.7 percent disparity in the 2007–2008 school year was equivalent to 47 girls who would have played sports if participation were exactly proportional to enrollment and no fewer boys participated. As the district court noted, 47 girls can sustain at least one viable competitive team. Defendants failed to raise more than a conclusory assertion