[authors: Bradford N. Paul and Seth Reagan]
Under Title IX of the Education Amendments of 1972, colleges receiving federal funding must afford equal participation opportunities in varsity sports to male and female athletes. One way schools demonstrate their compliance is by showing that the number of varsity opportunities for men and women are "substantially proportionate to their respective enrollments." For example, if a student body population is 60% male and 40% female, the total number of student-athlete positions at the school should mirror these percentages. The Department of Education has clarified that for an athletic participation opportunity to be counted for Title IX, it must be in the context of a "sport."
Earlier this year, Quinnipiac University (in Connecticut) argued to the Second Circuit that a district court had erred in finding that the university violated Title IX by eliminating its women's volleyball team. Quinnipiac had two main arguments: (1) that the district court should have considered the 30 roster positions on its competitive cheerleading team when calculating the school's total percentage of female athletic opportunities, and (2) that the district court should have counted all positions on the women's cross-country, indoor track, and outdoor track teams, even though some of the same athletes filled positions on all three teams.
The Second Circuit disagreed regarding the competitive cheerleading team. Although competitive cheerleading is an athletic endeavor, Quinnipiac cheerleading could not be considered a varsity sport. Several factors supported this conclusion: (1) Quinnipiac had not conducted any off-campus recruitment for the cheerleading team; (2) no uniform set of rules applied to competitive cheerleading throughout the regular season; (3) the cheerleading team's opponents consisted of "a motley assortment of competitors," including collegiate club teams and all-star teams unaffiliated with any academic institution; (4) the competitive cheerleading "post-season" was not based on any ranking, seeding, or playoff system leading to a championship, but rather consisted of a single open invitational; and (5) the competitive cheerleading championship tournament incorporated a new rule that had not been applied in any of the regular season competitions. Thus, the appellate court agreed with the district court that "Quinnipiac's competitive cheerleading team did not compete in circumstances indicative of varsity sports" and should therefore not be counted for Title IX purposes.
With respect to the women's cross-country athletes participating on multiple teams, the court agreed that "an athlete who participates in more than one sport [may] be counted as a participant in each sport in which he or she participates." However, Qunnipiac's practice of requiring its women's cross-country athletes to join the indoor and outdoor track teams, for purposes of allowing the cross-country athletes to train year-round, was a unique situation. The court concluded that the athletes who participated in at least half of the track competitions could be counted, whereas those who simply practiced with the team or participated in only one competition could not be counted as legitimate participants. Thus, five positions on the women's indoor track team and six positions on the women's outdoor track team could not be counted, because they were filled by noncompeting athletes who had been injured or red-shirted.
Ultimately, the Second Circuit affirmed the district court's judgment, and Quinnipiac was enjoined "from continuing to discriminate against female students by failing to provide them with equal athletic participation opportunities." This decision cautions schools against the double-counting of athletes who are required to join multiple sports teams, and provides guidance on determining what qualifies as a "sport" for purposes of Title IX compliance.