The case is Biediger v. Quinnipiac University, decided on August 7. Under Title IX, athletic opportunities for male and female students must be substantially proportionate to their respective enrollments at the school. The federal Office of Civil Rights requires that "a genuine athletic participation opportunity must take place in the context of a 'sport.'"
The University lost the trial because the district court had a factual basis to find that Quinnipiac was overcounting female athletes who were on multiple rosters for related track and field sports. It counted as 54 athletic participation opportunities the cross-country, indoor track and outdoor track roster positions held by the same 18 women. In other words, it counted these 18 athletes three times because they were on different teams. But these women were required to play on all three teams. Male athletes did not face these requirements. The University was "'pad[ding] its rosters' with female athletes who had 'no hope of competing or otherwise participating meaningfully during the indoor and outdoor track seasons." The Court of Appeals (Raggi, Winter and Chin) says the district court properly discounted some of the roster spots on these three teams to reduce the number of female athletes under Title IX.
The University also loses because "competitive cheerleading" is not a sport under Title IX. As Quinnipiac had used the 30 female roster spots for this "sport" in claiming that women had equal athletic opportunities, this holding further favors the plaintiffs. The University created this as a varsity sport, but unlike normal cheerleading, competitive cheerleaders
do not attempt to elicit crowd response; generally do not use pom-poms, megaphones, signs, or other props associated with [sideline] cheerleading teams; . . . wear uniforms consisting of shorts and jerseys, much like what women’s volleyball players don; and emphasize the more gymnastic elements of sideline cheerleading, such as aerial maneuvers, floor tumbling, and balancing exercises, to the exclusion of those activities intended to rally the watching audience.
The NCAA does not recognize this as a sport. Nor does the U.S. Department of Education. The University did not conduct off-campus recruiting for this activity, and there are no uniform set of rules governing competitive cheerleading, and Quinnipiac's team faced both intercollegiate competitive cheerleading teams and also "a motley assortment of competitors," including possibly high-school age opponents. There is also no progressive playoff system leading to a championship game.
In the end, after discounting the female athletes whose roster positions do not satisfy Title IX standards, there is a 3.62 percent disparity between male and female athletes. This is a slim percentage, but enough for plaintiffs to win under the circumstances, including the causes of the disparity.