Ashley J. Puchalski, Esq., firstname.lastname@example.org, (412) 594-5625
Brooks v. State Coll. Area Sch. Dist., No. 4:22-CV-01335, 2022 U.S. Dist. LEXIS 217173, at *2 (M.D. Pa. Dec. 1, 2022). The United States District Court for the Middle District of Pennsylvania granted the Plaintiffs’ Motion for a Preliminary Injunction enjoining the Defendant School District from taking further action that would preclude Plaintiffs from participating in the District’s ice hockey club program.
The Plaintiffs, middle-school aged female students, previously played ice hockey for a private girls’ ice hockey team at a local rink. When the local rink disbanded the hockey team in early 2022, the Plaintiffs tried out for State College Area School District’s middle school co-ed hockey team. However, Plaintiffs did not make the team, as the final roster included nineteen players—all males, no females.
The District has an Ice Hockey Club (“IHC”), which is a parent-run booster club organized to help facilitate the District’s ice hockey clubs at the various levels (middle school, junior varsity, varsity). Accordingly, after the Plaintiffs did not make the team, they gave notice to the District (via IHC) that they had assembled enough players, including the interested female students and other students who had not made the roster of the first team, coaches, and a designated separate ice time to roster a second team without any impact to the District. Alternatively, Plaintiffs asked the District to allow them to create a school-sponsored team independent of the IHC. However, both offers were rejected by the District.
After the Plaintiffs filed a grievance, the District’s Title IX Coordinator conducted an investigation and authored a report wherein she determined that the school district was compliant with Title IX pursuant to the three-part effective accommodation test. Accordingly, the Plaintiffs filed a Complaint and a Motion for Preliminary Injunction with the United States District Court for the Middle District of Pennsylvania.
Title IX holds that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” Furthermore, “[a] recipient which operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal athletic opportunities for members of both sexes.”
Plaintiffs seeking injunctive relief under Title IX must demonstrate that the alleged discrimination is a failure of “effective accommodation” or “equal treatment” under the statute’s subsequent regulations. Analysis of an “effective accommodation” claim includes a three-pronged effective accommodation test. Under the three-part effective accommodation test, an athletics program complies with Title IX if it satisfies any one of the following conditions: (1) Whether participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. The Office for Civil Rights of the Department of Education (“OCR”) clarified in 1996 that analysis of prong three asks whether, at the subject educational institution, there exists: (1) “unmet interest in a particular sport;” (2) sufficient ability to sustain a team in the sport;” and (3) “a reasonable expectation of competition for the team.” If the answer to all three questions is “yes,” OCR will find that an institution is not fully and effectively accommodating the interests and abilities of the underrepresented sex and therefore is not in compliance with [prong] three.
Because the parties only disputed whether the District was in compliance with the third prong of the three-part test, the Court focused its analysis there. First, the Court found that merely allowing female athletes to show up for co-ed tryouts is not enough to satisfy Title IX, as athletic opportunities means real opportunities, not illusory ones. Therefore, there were female students interested in ice hockey, and the District did not meet their interest. Next, the Court found that the District had sufficient ability to sustain an ice hockey team, as the Plaintiffs had enough total players to sustain a team and that the District did not demonstrate that it could not create a second co-ed middle school team that could accommodate the interested female students. Lastly, the Court determined that there is a reasonable expectation of competition for the team because neither party presented evidence indicating that a second co-ed middle school ice hockey team would be unable to compete in the already-existing club hockey league in which the current middle school ice hockey team competes. Accordingly, the Court determined that the District was in violation of Title IX, and Plaintiffs’ Title IX claim was likely to succeed on the merits. The Court also went on to hold that Plaintiffs satisfied all requisite requirements, entitling them to a preliminary injunction.
Brooks v. State College Area School District demonstrates that merely allowing female athletes to show up for co-ed tryouts when the final roster includes no female athletes is not enough to satisfy Title IX. School Districts must show that the athletic opportunities available to female athletes are real opportunities, not illusory ones.
February 20, 2023
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