The U.S. Court of Appeals for the Ninth Circuit changed its collective mind on Tuesday, revising an earlier opinion that seemed to change how college athletics departments must count female athletes for purposes of complying with a key federal gender-equity law.
In February, a three judge panel of the court of appeals reversed a federal district court’s decision and reinstated a gender-discrimination lawsuit against the University of California at Davis. The suit had been filed by three female wrestlers, who in 2000 were forced to compete against male wrestlers and then cut from the varsity team.
In its earlier opinion, the judges said that the university appeared to be in violation of Title IX of the Education Amendments of 1972, by failing to demonstrate a continual expansion of athletics opportunities for women. But in examining the university’s compliance with Title IX, the court ignored the addition of an indoor track team as evidence of program expansion because the athletes in that program also participated in outdoor track.
On Tuesday, the judges clarified their intention, issuing a revised opinion that aligns their decision with guidance from the Education Department’s Office for Civil Rights, which says that athletics programs are allowed to count female athletes in indoor and outdoor track as separate participants in determining whether they offer adequate athletics opportunities for women. According to the Education Department, it is the number of participation opportunities, not the number of athletes, that is taken into consideration when looking at program expansion.
“‘The number of female athletes may include athletes who are counted more than once by virtue of participating in more than one sport,” the judges write in a footnote of the revised opinion.
That small revision, though significant for athletics departments across the nation, does not reverse the appellate panel’s earlier conclusion that the university was in violation of federal gender-equity law.
The university expanded varsity opportunities for women only between 1996 and 2000,” the judges concluded, and the “elimination of women from the varsity wrestling team thus took place in the context of an overall contraction of female athletic-participation opportunities that began in 2000.”