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

 showing evidence of the kind “history and continuing practice of program expansion” sufficient to overcome a lack of “substantial proportionality” between female athletic participation and overall female enrollment. But Sweetwater’s methodology is flawed, and its argument misses the point of Title IX. The number of teams on which girls could theoretically participate is not controlling under Title IX, which focuses on the number of female athletes. See Mansourian, 602 F.3d at 969 (“The [Prong] Two analysis focuses primarily &hellip; on increasing the number of women’s athletic opportunities rather than increasing the number of women’s teams.”).

The number of female athletes at Castle Park has varied since 1998, but there were more girls playing sports in the 1998–1999 school year (156) than in the 2007–2008 school year (149). The four most recent years for which we have data show that a graph of female athletic participation at Castle Park over time looks nothing like the upward trend line that Title IX requires. The number of female athletes shrank from 172 in the 2004–2005 school year to 146 in 2005–2006, before growing to 174 in 2006–2007 and shrinking again to 149 in 2007–2008. As Plaintiffs suggest, these “dramatic ups and downs” are far from the kind of “steady march forward” that an institution must show to demonstrate Title IX compliance under the second prong of the three-part test. We conclude that there is no “history and continuing practice of program expansion” for women’s sports at Castle Park.

D

Female athletic participation is not substantially proportionate to overall female enrollment at Castle Park. And there is no history or continuing practice of program