Page:Veronica Ollier v. Sweetwater Union High School District (September 19, 2014) US Court of Appeals for the Ninth Circuit.djvu/20

 expansion for women’s sports at the school. And yet, Sweetwater can still satisfy Title IX if it proves “that the interests and abilities of” female students “have been fully and effectively accommodated by the present program.” 44 Fed. Reg. at 71,418; see also Neal, 198 F.3d at 767–68. This, the third prong of the Title IX “effective accommodation” test, considers whether a gender imbalance in athletics is the product of impermissible discrimination or merely of the genders’ varying levels of interest in sports. See 1996 Clarification. Stated another way, a school where fewer girls than boys play sports does not violate Title IX if the imbalance is the result of girls’ lack of interest in athletics.

The Department of Education’s 1996 guidance is again instructive: In evaluating compliance under the third prong, we must consider whether there is (1) “unmet interest in a particular sport”; (2) ability to support a team in that sport; and (3) a “reasonable expectation of competition for the team.” Id. Sweetwater would be Title IX-compliant unless all three conditions are present. See id. Finally, if an “institution has recently eliminated a viable team,” we presume “that there is sufficient interest, ability, and available competition to sustain” a team in that sport absent strong evidence that conditions have changed. Id.; see also Cohen v. Brown Univ., 101 F.3d 155, 180 (1st Cir. 1996).

Sweetwater contends that (1) Plaintiffs were required to, but did not, conduct official surveys of female students at Castle Park to gauge unmet interest; (2) field hockey is irrelevant for Title IX purposes because it is not approved by the California Interscholastic Federation (“CIF”); and (3) in any event, field hockey was eliminated only because interest in the sport waned.