The Ninth Circuit Court of Appeals recently issued a revision to its decision, issued in February, that reinstated female wrestlers' case against the University of California at Davis. The revision does not change the outcome or the court's analysis of the main issue on appeal, which was district court's erroneous determination that the plaintiffs had to provide actual notice to the university before proceeding with their claim that its decision to eliminate women's wrestling opportunities violated Title IX.
Rather, the revision clarified that the various Title IX compliance prongs -- including, prong two, which was UC Davis's professed means of compliance -- measure athletic opportunities, not number of athletes. Thus, UC Davis may count opportunities added in sports like indoor track in its argument that it has historically and continuously added opportunities for the underrepresented sex (as prong 2 requires), even if some of the participants who benefited from the new team already participated in outdoor track. However, even counting the indoor track opportunities, UC Davis still did not meet the prong 2 standard, since it only added opportunities for women between 1996 and 2000. Thus, UC Davis could not satisfy any of the three prongs after it eliminated opportunities for women in wrestling.
Revised decision is: Mansourian v. Regents of the Univ. of Ca., 2010 WL 1542502 (9th Cir, Apr. 20, 2010).
