A federal judge in the District of Colorado has granted summary judgment to a school district on a Title IX claim, finding that the district “fully and effectively accommodated” the interests of Grand Junction High School’s female student-athletes.
Plaintiff Jessica Wieker, a female volleyball player, initiated the suit on May 2, 2005, seeking damages and injunctive relief, in connection with Grand Junction High School volleyball coach’s decision to “cut” Wieker, who was a senior at the time, from the school’s varsity volleyball team.
Among other things, Wieker asserted claims for discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 -88.
Both sides eventually moved for summary judgment, leading to the instant opinion.
By way of background, the court noted that at GJHS, there are three volleyball teams for girls: freshman, junior varsity and varsity. While attending GJHS, it continued, “Wieker participated on the sub-varsity volleyball teams (the freshman team her freshman year and the junior varsity team her sophomore and junior years). In August 2004, when Wieker was a senior, she participated in try-outs for the GJHS volleyball team. During this time, Coach Robert Korver was the head coach of the volleyball program and made the final decision about whom, and how many, would participate on his teams. The District does not limit coaches’ discretion about who is on the team and how many are on the team. Coach Korver did not allow seniors to play junior varsity and limited participation on the freshman team for freshman. Based on the result of the tryouts, Coach Korver selected 20 girls for his junior varsity and varsity teams. Coach Korver ranked Wieker 22nd, and she was not selected for the volleyball program.”
Next, the court turned to Title IX Claim, focusing specifically on the Office of Civil Rights in the Department of Education and its three-part test “to assess effective accommodation with respect to opportunities for intercollegiate competition.
“Courts, including the Tenth Circuit, have adopted this test in evaluating ineffective accommodation claims, and both parties agree that this test should be utilized in assessing Wieker’s accommodation claim in this case. Effective accommodation of students’ interests and abilities is established where an institution complies with one of the following three benchmarks:
“(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
“(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
“(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.”
The court sided with the plaintiff of prong one, shooting down the district contention that it should be able to count “participants in spirit teams as part of the total number of athletic participants in assessing proportionality under Title IX. … Wieker has shown that the District failed to maintain substantial proportionality between male and female athletic participation at GJHS.”
Similarly, the district judge thwarted the defendant’s argument that it had satisfied the second prong, finding that there was “simply no evidence of continual expansion of opportunities for female athletes to participate at GJHS.”
The school district finally found success on the third benchmark. “If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test.” Cohen v. Brown University, 991 F.2d 888, 898 (1st Cir. 1993)
The operative descriptor is “sufficient,” according the federal judge. “Title IX does not require an institution to create a new team unless there is interest, ability, and a reasonable expectation of competition for that team,” the judge wrote citing Cohen and other cases.
“The District does not dispute that it never conducted formal, interest surveys among students at GJHS, but states that it never received a ‘petition’ for a fourth volleyball team, and that Wieker is the only female athlete before the Court expressing interest in a fourth volleyball team. In addition, the District asserts that even if Wieker could establish ‘interest and ability’ to form a fourth volleyball team, there is no reasonable expectation of competition for such a team. According to the District, ‘there are currently no fourth volleyball teams to play in the District’s league, or anywhere else in its geographic region.’”
“Wieker has failed to make a sufficient showing that the District failed to accommodate her interests and abilities.”
Jessica Wieker et al. v. Mesa County Valley School District # 51; D.Colo.; Civil Action No. 05-cv-806-WYD-CBS, 2007 U.S. Dist. LEXIS 11956; 2/21/07
Attorneys of Record: (For plaintiffs) Michael Joseph Grattan, III, LEAD ATTORNEY, Michael J. Grattan, III, P.C, Grand Junction, CO. (for defendant) David A. Price, LEAD ATTORNEY, Colorado Association of School, Boards-Grand Junction, Grand Junction, CO.
