Ineffective Accomodation Claim Fails in Colorado

When Jessica Wieker was a senior at Grand Junction High School in Colorado, she tried out but did not make the varsity volleyball team. Her school had two other, nonvarsity volleyball teams, a JV team and a freshman team, but the head volleyball coach prohibited seniors from holding positions on the nonvarsity teams. As a result, Wieker was cut from the volleyball program.

Wieker sued the school, alleging that by cutting her, the school failed to accommodate her interests and abilities in satisfaction of the Title IX's third prong. Because GJHS did not satisfy either of the first two regulatory prongs (substantial proportionality, or a continuous expansion of opportunities for girls), it needed to accommodate female students' interests and abilities to comply with Title IX.

The third prong requires schools to fully accommodate women's interests and abilities. This means that if there is unmet interest and ability in a particular sport among the female student body, a school may be required to add an additional team in that sport, unless the school can show there there is no reasonable expectation of competition for that team.

Wieker argued that GJHS could have accommodated her interest and other students' unmet interests in volleyball by adding a fourth team. In support of this argument, she pointed out that girls get cut in significant numbers. Moreover, a fourth volleyball team would have been appropriate because the boys' football and other sports do not have any cuts, and thus accommodate all interests and abilities.

The court rejected Wieker's argument because she evidence she submitted of unmet interest was limited, essentially, to the number of girls cut from volleyball program The court refused to infer that every girl who was cut was interested and capable of playing on a competitive fourth volleyball team. As for the comparison to boys programs with no cuts, the court said this was irrelevant to the relevant question, whether girls interests and abilities were effectively accommodated.

The case is Wieker v. Mesa County Valley School Dist. #51, 2007 WL 595629 (D. Colo. Feb. 21, 2007).