Page:Veronica Ollier v. Sweetwater Union High School District (September 19, 2014) US Court of Appeals for the Ninth Circuit.djvu/18

 that the specific circumstances at Castle Park explained the 6.7% disparity between female participation opportunities and female enrollment, or that Castle Park could not support a viable competitive team drawn from the 47 girls. As a matter of law, then, we conclude that female athletic participation and overall female enrollment were not “substantially proportionate” at Castle Park at the relevant times.

C

Participation need not be substantially proportionate to enrollment, however, if Sweetwater can show “a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of” female athletes. 44 Fed. Reg. at 71,418; see also Neal, 198 F.3d at 767–68. This second prong of the Title IX “effective accommodation” test “looks at an institution’s past and continuing remedial efforts to provide nondiscriminatory participation opportunities through program expansion.” 1996 Clarification. The Department of Education’s 1996 guidance is helpful: “There are no fixed intervals of time within which an institution must have added participation opportunities. Neither is a particular number of sports dispositive. Rather, the focus is on whether the program expansion was responsive to developing interests and abilities of” female students. Id. The guidance also makes clear that an institution must do more than show a history of program expansion; it “must demonstrate a continuing (i.e., present) practice of program expansion as warranted by developing interests and abilities.” Id.

Sweetwater contends that Castle Park has increased the number of teams on which girls can play in the last decade,