Amici In High Places

I learned at the Quinnipiac trial this week that the Department of Justice has filed an amicus brief in support of the plaintiff's argument that cutting volleyball would render the school out of compliance with Title IX. In the brief, the government echoes the district court's analysis of the motion for preliminary injunction: that "extra" players added to women's teams to suggest the appearance of equity should not be counted toward Qunnipiac's purported demonstration of proportionality, since the law seeks to ensure equitable distribution of "genuine" participation opportunities, not illusory ones.

The government also argues that opportunities added in competitive cheer should not count as genuine participation opportunities. The brief points out that the Department of Education requires that before a school can report cheer opportunities toward Title IX compliance, it must receive an opinion letter from its Office for Civil Right certifying that those cheer opportunities are bona fide athletic opportunities (rather than sideline cheerleading). No schools have received one of these letters. Moreover, the brief continues, Quinnipiac's competitive cheer team does not satisfy two of the criteria OCR uses to measure whether opportunities in cheer constitute athletic opportunities under Title IX, namely, a progressive-style competition and a governing body. (Defined season, athletic department funding and support, competition as the primary purpose, and skill-based selection are some of the other elements of OCR's test.) In sum, competitive cheer opportunities as the currently exist are not sufficiently similar to the other athletic opportunities offered by Quinnipiac to be included in the inquiry of whether those athletic opportunities are equitably distributed.

This is not the first time we've seen pro-Title IX positions coming out of DOJ in recent months. The agency also filed in support of the plaintiffs who sued the Florida High School Athletic Association case and also intervened on behalf of the student challenging sexual/sexual orientation-based harassment case against the Mohawk Central School District in New York. Keep it up, DOJ. I'm glad to see that challenging sex discrimination in education is an agency priority.