South Dakota Court Finds School District is Violating Title IX, Must Restart Gymnastics Program

Dec 1, 2023

A federal judge from the District of South Dakota has granted a motion for a preliminary injunction, preventing a school district from cancelling a women’s gymnastics program and selling the equipment, finding that the district could possibly violate Title IX.

By way of background, the plaintiffs were students at a school in the Sioux Falls School District. The plaintiffs were either participants or had an interest and intent to participate in the gymnastics program. 

On April 11, 2023, the District at a school board meeting disseminated a proposed budget for the 2023-24 school year, which cut the gymnastics program’s funding of $76,094 and eliminated the program outright. The plaintiffs, along with their parents, attended the meeting and objected to the elimination of the gymnastics program.

On April 24, 2023, the District officially adopted the proposed budget eliminating the gymnastics program. Attending that meeting as well, the plaintffs warned that the elimination of the gymnastics program may violate Title IX. 

On April 25, 2023, the parents of plaintiffs, reached out to the Office of Civil Rights (OCR) of the Department of Education (DOE) and expressed concern about a potential Title IX violation. After corresponding with “a slow to respond OCR,” one of the parents, Agni Allen, filed a formal Title IX complaint against the District on May 23, 2023. Over the following months the OCR continued to be slow to respond while they evaluated the claim, according to the court.

On July 10, 2023, the District officially approved the final 2023-24 school year budget, which eliminated the gymnastics program. The District stated gymnastics was eliminated because 1) there was a decline in female participation in the sport, 2) an inability to find and retain coaches, 3) the financial burden of the program, 4) difficulty scheduling busing to competitions, and 5) a high interest in participating in other sports.

The District later put the gymnastics program’s equipment up for sale with bidding closing on September 11, 2023. With “a slow responding OCR, and desire to preserve the gymnastics program,” the parents of plaintiffs retained counsel and filed this claim Sept. 12, 2023, requesting a preliminary injunction preventing the sale of the equipment and reinstatement of the gymnastics team.

The District is a public school district that has a student enrollment of 51.05% to 48.95% male to female students, or 3,761 to 3,606 respectively. In 2022-23 the numbers show 1,742 males and 1,229 females had participated in the District sports programs. Notably, there was a 7.6% deviation in the level of female enrollment compared to the level of female participation in athletics within the District. “This means 441 additional female participants, or 460 fewer male participants were needed in athletics to achieve exact proportionality with enrollment,” wrote the court.

Since 2008, the District has added five female sports: competitive cheer, competitive dance, soccer, wrestling, and softball. In 2021, the District conducted a survey to measure students’ interest and participation level in sports offered and potentially offered by the District. As a result of this, the District stated in oral arguments that the District started offering girl’s wrestling and softball in 2021 and 2022 respectively. The survey recorded 113 responses interested in or participating in gymnastics, 44 responses interested in or participating in girls wrestling, 107 responses and 87 responses interested in Fall and Spring softball respectively.

Since 2004, the discrepancy between female athletes and their enrolment levels has trended downward from 12.2% in 2004-05 to 7.6% in 2022-23, with a low point of 4.7% in 2015-2016. Participation in the gymnastics program has fluctuated over the years, peaking in the 2015-16 school year at 133 participants and declining to just 57 participants in 2022-23.

In its analysis, the court reviewed the factors to be considered with a motion for preliminary injunction.

The analysis for granting a preliminary injunction rests upon a four-factor balancing test set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). 

The four factors are:

(1) the threat of irreparable harm to the movant;

(2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant;

(3) the probability that movant will succeed on the merits; and

(4) the public interest.

Factor One: Threat of Irreparable Harm to the Movant

Addressing the first factor, the court wrote that “while the litigation goes forward, without a preliminary injunction, the plaintiffs will suffer the irreparable harm of losing the ability to participate in gymnastics. The District has already cut the gymnastics program from the 2023-2024 budget and has requested bids for the sale of the gymnastic program’s equipment. Even if the plaintiffs end up winning on the merits, without a preliminary injunction the plaintiffs will not be able to practice or compete in the upcoming gymnastics season set to begin October 30, 2023. Money cannot retroactively fix this harm, making it irreparable. This is supported by other district courts within the 8th Circuit that agree that athletes suffer irreparable harm when they cannot participate in their sport while Title IX litigation is ongoing. 

“The plaintiffs may also suffer from unequal treatment, in violation of Title IX. As discussed below, plaintiffs have a substantial probability of success on the merits. If the plaintiffs succeed on the merits but are not granted a preliminary injunction, they will suffer a temporary violation of Title IX. While temporary, they would have no recourse against the District for the violation. The plaintiffs’ expectation that they may be treated unequally in violation of Title IX’ s terms is an irreparable harm.”

Factor Two: Balance of Harm Between Movant on Non-Movant

Concerning the second factor, the court found “the potential unequal treatment of the plaintiffs in violation of Title IX outweighs the burden of continuing the gymnastics program. The District has been operating the gymnastics program for several years, and a financial burden may not justify gender discrimination in violation of Title IX.”

Factor Three: Likelihood of Success on the Merits

The court found that the plaintiffs “have a substantial probability of success on the merits as defendants have not shown compliance with any of the three-prongs of Title IX’s effective accommodation test.”

After some lengthy analysis, the court expanded on the above conclusion upon the basis of factor three: “Based on the provided pleadings and oral arguments of the parties; the plaintiffs have a substantial probability of success on the merits because the District has not shown compliance with any of the three-prong tests of Title IX. The District fails prong-one because they have not shown the discrepancy between female athletic participation and enrollment is ‘substantially proportional.’ The District fails prong-two because they have not shown they are continuously (presently) expanding participation opportunities for females. The District fails prong-three because they are silent on the matter. The District has failed to show compliance with any of the three prongs. The plaintiffs have a good chance of succeeding on the merits.”

Factor Four: The Public Interest

The court found that the fourth factor “favors the plaintiff’s because it is ‘firmly in the public’s interest to enforce antidiscrimination laws such as Title IX.’” Furthermore, the court wrote, “I do find the District’s argument that it is in the public interest to allow the District discretion in administering its own finances compelling. I am always hesitant to overturn the decision of an elected body as an unelected official appointed to the bench by President Bill Clinton in 1995. However, financial concerns cannot outweigh the harm of gender discrimination, particularly when compliance means continuing a over one-decade long gymnastics program. Further, finances are generally not a factor the Court may consider under Title IX. Ohlensehlen v. Univ. of Iowa, 509 F. Supp. 3d 1085 (S.D. Iowa 2020) (citing a 6th Circuit case and a district court case from the 7th Circuit). The goal of Title IX is to eliminate gender discrimination with the resources available. The District’s argument that they only have enough funding to provide potentially discriminatory opportunities is a direct violation of Title IX.”

S.A. v. Sioux Falls Sch. Dist. 49-5; D.S.D.; 10/13/23; 4:23-CV-04139-CBK

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