[author: Jackie Wernz]
A federal appeals court has held that competitive cheerleading cannot be counted as a sport for Title IX purposes. Although the decision came in a lawsuit filed by a university coach and students, it has implications for school sports programs at all levels of education, including at K12 schools.
As we reported in an FR Alert in 2010 analyzing the district court decision in this same matter, the coach and members of the women’s volleyball team at Connecticut’s Quinnipiac University filed a lawsuit against the University after it eliminated the women’s volleyball team. The school relied on members of a new competitive cheerleading program to calculate the number of varsity female athletes under Title IX, which requires schools to afford equal participation opportunities in varsity sports to female students.
A federal trial court found that competitive cheerleading was not a legitimate intercollegiate varsity sport for Title IX purposes, because the activity did not yet afford the participation opportunities of a varsity “sport.” The Second Circuit Court of Appeals, which has jurisdiction over Connecticut, New York, and Vermont, affirmed the decision of the trial court. The appellate court noted that competitive cheerleading can be “physically challenging, requiring competitors to possess strength, agility, and grace.” And the Court did not foreclose the possibility that competitive cheerleading could, “with better organization and defined rules,” obtain the status of a “sport” for Title IX purposes. But like the trial court, the appeals court held that “that time has not yet arrived.” Neither the NCAA nor the Department of Education have recognized the activity as a sport; competitive cheerleading coaches cannot recruit off campus; and the teams have an inconsistent regular season and lack a legitimate post-season. For these reasons, the school could not rely on the members of its competitive cheerleading team to meet its Title IX obligations.
Because the Second Circuit is the first federal appellate court to rule on this issue, even schools outside of the court’s jurisdiction should be wary of counting competitive cheerleading as a sport for Title IX purposes. Moreover, although this case arose in a higher education context, the ruling is equally applicable at all levels of education. Accordingly, colleges, universities and K12 schools should understand that there are significant risks associated with considering competitive cheerleading as a sport to meet Title IX obligations.