(3) Where the members of one sex are underrepresented among … 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.
See 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). We have adopted this three-part test, which by its terms provides that an athletics program complies with Title IX if it satisfies any one of the above conditions. See Neal, 198 F.3d at 767–68.[1]
A
Sweetwater contends that the district court erred in granting summary judgment to Plaintiffs on their Title IX unequal participation claim because (1) there is “overall proportionality between the sexes” in athletics at Castle Park; (2) Castle Park “expanded the number of athletic teams for female participation over a 10-year period”; (3) “the trend over 10 years showed increased female participation in sports” at Castle Park; and (4) Castle Park “accommodated express female interest” in state-sanctioned varsity sports. Relatedly, Sweetwater argues that there was insufficient interest among female students to sustain viable teams in field hockey, water polo, or tennis.
- ↑ We give deference to the Department of Education’s guidance according to Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 843–44 (1984). See Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 965 n.9 (9th Cir. 2010).
