The Issue

In recent years, state legislatures, state departments of education and state athletic/activity associations have enacted statutes and regulations decreeing competitive cheerleading to be an “officially recognized” sport and imposing obligations on schools with regard to competitive spirit programs. The passage of such laws and rules has primarily been for the purpose of ensuring that the same safety standards are in place for competitive cheer as are for all other interscholastic sports, but a closely-related question has been whether such state statutes and state association regulations classifying competitive spirit as a sport have created a legal mandate that schools are permitted to count participants in competitive cheer for purposes of calculating Title IX “substantial proportionality.”

For example, in 2015, the California High Schools Expanding Equality Respect and Safety Act – the CHEERS Act – was passed by the state legislature (AB 949) and signed into law by Governor Jerry Brown. The statute, which went into effect on July 1, 2017, classified competitive cheerleading as an official interscholastic sport in California, mandating that with oversight from the California Interscholastic Federation, coaches for competitive cheer must satisfy the same health and safety training standards as those who coach all other interscholastic athletics, including the completion of concussion, first aid and CPR courses. All of the requirements of the new state law are now incorporated into the CIF Bylaws (Article 170 – Competitive Cheer).

The new state law also mandates that the CIF attempt to obtain official approval from the United States Department of Education’s Office for Civil Rights (OCR) to count participants in competitive cheer as athletes for purposes of evaluating Title IX compliance.

The OCR and federal courts have long held that Title IX provides educational institutions with three alternative methods for demonstrating that equivalent athletics participation opportunities are being provided to the females enrolled at a school as compared to those provided for its male enrollment.

A school may satisfy this “three-prong test” either by 1) showing that the number of female sports participation opportunities expressed as a percentage of the total athletics participation opportunities offered at the institution is “substantially proportional” to the school’s ratio of female enrollment; or 2) demonstrating that the institution has a “history and continuing practice” of expanding its participation opportunities for females; or 3) showing that the school is already “fully and effectively accommodating the athletics interests and abilities” of its female enrollment.

One of the most contentious issues has been whether cheerleaders should be counted as athletics participants for purposes of computing substantial proportionality. Opponents argue that equating cheerleading with a varsity sport is merely a way for schools to circumvent the intended purposes of Title IX and that educational institutions should focus on creating new sports participation opportunities for girls as opposed to re-labeling existing activities in a form-over-substance attempt to satisfy the substantial proportionality prong of Title IX.

Proponents argue that cheerleading has evolved into a highly competitive sporting activity equivalent in nature to already-existing varsity sports and, at the high school level, many girls choose competitive cheer as their athletics activity and thereby forego participation in other sports such as gymnastics, diving, volleyball, basketball, soccer, and the like for which they would have been counted as participants for purposes of computing proportionality.

According to the 2017-18 NFHS High School Athletics Participation Survey, 162,699 female students at 6,877 schools participated on competitive spirit squads – cheerleading teams created not merely as sideline squads, but for the primary purpose of engaging in competition against other squads in local, state and national level events – making the activity the ninth-most popular among all girls programs. A

ccording to the survey, only 3,851 male students at 879 schools participated in competitive spirit, illustrating that the numerical dominance of females in the activity (158,848 more girls than boys) would have a significant impact on the calculation of Title IX substantial proportionality in America’s high schools. The full-text Participation Survey, including all of the participation data organized both by sport and by state, is available here.

Criteria for a “Sport”

Presently, the OCR does not take an official position as to whether competitive spirit is universally considered a sport for the purposes of Title IX or whether participants may be counted for purposes of computing substantial proportionality. Instead, the OCR provides a set of criteria for evaluating whether a particular activity will be considered to be a sport and the agency makes a case-by-case determination as to whether a specific activity offered by a school satisfies those criteria.

On September 17, 2008, the OCR released a “Dear Colleague Letter” – a document intended to provide guidance for educational institutions – titled Athletic Activities Counted for Title IX Compliance. The full-text of the document can be found on the OCR’s website at www2.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html.

The “Dear Colleague Letter” begins with a statement by the Assistant Secretary for Civil Rights that the purpose of the document is to provide “clarifying information to help institutions determine which intercollegiate or interscholastic athletic activities can be counted for the purpose of Title IX compliance.” The guidance continues by stating that “in its case-by-case evaluation of whether an activity can be counted as an intercollegiate or interscholastic sport for the purpose of Title IX compliance, OCR will consider all of the following factors:

PROGRAM STRUCTURE AND ADMINISTRATION – Taking into account the unique aspects inherent in the nature and basic operation of specific sports, OCR considers whether the activity is structured and administered in a manner consistent with established intercollegiate or interscholastic varsity sports in the institution’s athletics program, including:

• Whether the operating budget, support services (including academic, sports medicine and strength and conditioning support) and coaching staff are administered by the athletics department or another entity, and are provided in a manner consistent with established varsity sports; and
• Whether the participants in the activity are eligible to receive athletic scholarships and athletic awards (e.g., varsity awards) if available to athletes in established varsity sports; to the extent that an institution recruits participants in its athletics program, whether participants in the activity are recruited in a manner consistent with established varsity sports.

TEAM PREPARATION AND COMPETITION – Taking into account the unique aspects inherent in the nature and basic operation of specific sports, OCR considers whether the team prepares for and engages in competition in a manner consistent with established varsity sports in the institution’s intercollegiate or interscholastic athletics program, including:

• Whether the practice opportunities (e.g., number, length and quality) are available in a manner consistent with established varsity sports in the institution’s athletics program; and
• Whether the regular-season competitive opportunities differ quantitatively and/or qualitatively from established varsity sports; whether the team competes against intercollegiate or interscholastic varsity opponents in a manner consistent with established varsity sports; When analyzing this factor, the following may be taken into consideration:

Whether the number of competitions and length of play are predetermined by a governing athletics organization, an athletic conference or a consortium of institutions;

Whether the competitive schedule reflects the abilities of the team; and

Whether the activity has a defined season; whether the season is determined by a governing athletics organization, an athletic conference or a consortium.

• If preseason and/or postseason competition exists for the activity, whether the activity provides an opportunity for student-athletes to engage in the preseason and/or postseason competition in a manner consistent with established varsity sports; for example, whether state, national and/or conference championships exist for the activity; and
• Whether the primary purpose of the activity is to provide athletic competition at the intercollegiate or interscholastic varsity levels rather than to support or promote other athletic activities. When analyzing this factor, the following may be taken into consideration:

Whether the activity is governed by a specific set of rules of play adopted by a state, national or conference organization and/or consistent with established varsity sports, which include objective, standardized criteria by which competition must be judged;

• Whether resources for the activity (e.g., practice and competition schedules, coaching staff) are based on the competitive needs of the team;
• If postseason competition opportunities are available, whether participation in postseason competition is dependent on or related to regular-season results in a manner consistent with established varsity sports; and
• Whether the selection of teams/participants is based on factors related primarily to athletic ability.

To-date, the OCR has not yet ruled in a single Title IX case anywhere in the country that a high school’s competitive spirit program sufficiently comports with the criteria set forth in the Dear Colleague Letter to allow participants to be counted in the calculation of prong-one proportionality. It is important for school and athletic administrators to be aware that the OCR does not defer to the recognition of competitive cheer as a sport by state laws such as California’s AB 49 or state association designations of competitive spirit as a sport. And only one federal lawsuit of note – Biediger v. Quinnipiac University – has been decided using the criteria from the DCL.

Biediger v. Quinnipiac University

On July 21, 2010, a U.S. District Court judge in Connecticut ruled that members of Quinnipiac University’s competitive cheerleading squad could not be counted as varsity athletes for purposes of the school’s compliance with Title IX.

In March 2009, Quinnipiac administrators announced that, beginning with the 2009-10 academic year, as a cost-cutting measure designed to address budget shortfalls, the school would eliminate three sports: the men’s golf team, the men’s outdoor track team and the women’s volleyball team. The volleyball squad was to be replaced with a competitive cheerleading squad. Five members of the volleyball team and its coach filed a federal lawsuit arguing that the school’s plan violated Title IX and seeking reinstatement of the volleyball program.

Relying on the legal standards set forth in the 2008 DCL, the court’s 95-page decision included a detailed analysis whether competition was the primary objective of Quinnipiac’s competitive cheer squad; whether the team operated under the umbrella of a governing organization; whether consistent rules and scoring systems were used for all competitions; whether the squad competed against appropriate levels of competition; and whether the team was structured and operated similar to all other varsity sports at the university.

The court acknowledged that Quinnipiac and seven other schools had founded a governing body, the National Competitive Stunt and Tumbling Association, but concluded that inconsistency of competition and scoring systems doomed Quinnipiac’s compliance with the standards necessary for classification of its competitive cheer squad as a sport. In the 10 events in which the team competed, five different scoring systems were used. Furthermore, the squad’s competition included a mixture of college competitive cheer teams, college sideline cheer squads, all-star teams with no school affiliation and high school cheer squads.

Essentially, the court decided that Quinnipiac had attempted to game the system in a form-over-substance way to demonstrate compliance with Title IX. The ruling was highly fact-specific and it is important to note that the court did not decree that competitive cheer squad members could never be counted toward Title IX compliance, but rather that the structure and administration of Quinnipiac’s competitive cheer program failed to satisfy the standards set forth in the DCL for an activity to be considered a sport under Title IX.

In his written decision, U.S. District Court Judge Stefan R. Underhill stated that, “in reaching my conclusion, I do not mean to belittle competitive cheer as an athletic endeavor. Competitive cheerleading is a difficult, physical task that requires strength, agility and grace. I have little doubt that at some point in the near future – once competitive cheer is better organized and defined – competitive cheer will be acknowledged as a bona fide sporting activity by academic institutions, the public, and the law.”

In August 2012, the U.S. Second Circuit Court of Appeals upheld the decision and in April of 2013, Quinnipiac University settled the case by agreeing to reinstate the women’s sports that were to be eliminated and to invest millions of dollars into facilities, scholarships and other aspects of its women’s sports programs.