Page:Veronica Ollier v. Sweetwater Union High School District (September 19, 2014) US Court of Appeals for the Ninth Circuit.djvu/21

 Sweetwater’s arguments are either factually wrong or without legal support. First, Title IX plaintiffs need not themselves gauge interest in any particular sport. It is the school district that should evaluate student interest “periodically” to “identify in a timely and responsive manner any developing interests and abilities of the underrepresented sex.” 1996 Clarification. Second, field hockey is a CIF-approved sport. But even if it were not, Sweetwater’s position is foreclosed byTitle IX’s implementing regulations, which state that compliance “is not obviated or alleviated by any rule or regulation of any organization, club, athletic or other league, or association.” 34 C.F.R. § 106.6(c); see also Biediger, 691 F.3d at 93–94 (noting that we are to determine whether a particular “activity qualifies as a sport by reference to several factors relating to ‘program structure and administration’ and ‘team preparation and competition’” (quoting Letter from Stephanie Monroe, Assistant Sec’y for Civil Rights, Office of Civil Rights, U.S. Dep’t of Educ., to Colleagues (Sept. 17, 2008))). Third, the record makes clear that Castle Park cut its field hockey team not because interest in the sport waned, but because it was unable to find a coach. And the school’s inability to hire a coach does not indicate lack of student interest in the sport.

Castle Park offered field hockey from 2001 through 2005, during which time the team ranged in size from 16 to 25 girls. It cut the sport before the 2005–2006 school year before offering it again in 2006–2007. It then cut field hockey a second time before the 2007–2008 school year. The Department of Education’s guidance is clear on this point: “If