(08-12-2021 01:26 PM)dbackjon Wrote: (08-12-2021 12:01 PM)nodak651 Wrote: Title 9 may be an issue for schools that have Mens hockey teams but not womens hockey... a circuit court just overturned a decision and said satisfying three prong approach wasn't enough, and that the lower court must also consider this 1979 title 9 interpretation:
4. Application of the Policy - Selection of Sports.
In the selection of sports, the regulation does not require institutions to integrate their teams nor to provide exactly the same choice of sports to men and women. However, where an institution sponsors a team in a particular sport for members of one sex, it may be required either to permit the excluded sex to try out for the team or to sponsor a separate team for the previously excluded sex.
a. Contact Sports - Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances:
(1) The opportunities for members of the excluded sex have historically been limited; and
(2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.
Official court opinion: https://ecf.ca8.uscourts.gov/opndir/21/08/192517P.pdf
Article: https://news.yahoo.com/und-womens-hockey...00159.html
Interesting. So UND (the subject of the lawsuit) may be forced to either drop Men's Hockey or revive Women's Ice Hockey.
It's a possible outcome, but there are a handful of different ways it could play out.. I don't
think it will come to that based on the opinion from the 3rd judge, where the judge writes the following (I bolded for emphasis):
"This 1979 separate-teams mandate has largely disappeared from public view
since it was issued. No court has relied on the mandate to find liability under Title
IX.
Neither the complaint nor the parties on appeal point to any instance in which the
government has enforced the separate-teams mandate. According to the University,
the Department’s Office for Civil Rights (OCR) investigated a complaint that
discontinuation of the women’s ice hockey program violated Title IX, but closed its
investigation without alleging a violation. By contrast, the Department repeatedly has
addressed how an institution may comply with obligations under Title IX by meeting
the Department’s three-part test.8"
"Nor has the University yet presented evidence about OCR’s
inquiry into the discontinuation of the women’s ice hockey program. If it turns out
that the Department were to abandon the separate-teams mandate, and clarify
definitively that the “effective accommodation” inquiry is limited to the three-part test
and quality of competition, then that would change the complexion of this case.
Or
if the Department retains the separate-teams mandate “on paper” in a 43-year-old
policy interpretation, but as a practical matter does not enforce the mandate, then
there may be a serious question about whether the mandate is really a valid regulatory
interpretation that provides a basis for civil liability or attorney’s fees in private
litigation brought under an implied right of action."
"
Even if it ends up that the 1979 separate-teams mandate is a current and
reasonable interpretation of § 106.41©(1), there is also a question of fair notice to
the University. If the agency’s public pronouncements and enforcement activity have
muddied the waters to the point where an institution is unable to identify the rules
with “ascertainable certainty,” then the University may have a defense to liability and
attorney’s fees based on due process. See Wis. Res. Prot. Council v. Flambeau
Mining Co., 727 F.3d 700, 708-09 (7th Cir. 2013); Gen. Elec. Co. v. U.S. EPA, 53
F.3d 1324, 1328-31 (D.C. Cir. 1995).
But such a defense would not establish at this
point that the plaintiffs’ complaint fails to state a claim."
I'm not sure how to interoperate the last paragraph, because the two bolded sections seem to contradict each other. Can both parts be true? Then what? Would UND not have to take action, but going forward, other teams would need to due to precedent? Would a women's team be mandated whenever a mens team is started up? The whole thing is a huge can of worms.