Sioux Falls School District to appeals court: When can a female sport be eliminated?

Lawyers for both the Sioux Falls School District, and the student gymnasts who sued the district for cutting their sport, made their arguments Thursday morning before Eighth Circuit Court of Appeals Judges Steve Colloton, Duane Benton and Bobby Shepherd in St. Paul, Minnesota.

Ultimately, the court hearing ended with one of the judges declaring the filing was submitted, and the court will file a decision or further direction in due course.

This hearing in the higher court followed a South Dakota district court ruling from October that the district likely violated Title IX by cutting the gymnastics program. That court, through a preliminary injunction, ordered the district to temporarily reinstate the sport for the current school year, and the district has said it will also offer gymnastics for the next year, too.

More: Sioux Falls gymnastics season must continue, federal judge rules in Title IX lawsuit

The district court has stayed the proceedings, meaning it’s waiting for the Eighth Circuit Court of Appeals to render a decision before it continues hearings in the South Dakota district court.

District court incorrectly interpreted, applied Title IX law, district lawyer argues

Reece Almond, representing the district, said the issue in the district’s appeal “really boils down to when can a public school district replace one female sport for two separate female sports and be compliant with Title IX.”

The district added girls’ wrestling in the 2021-2022 school year, and girls softball in the 2022-2023 school year, which resulted in a net increase of female sports participants in the district despite cutting gymnastics initially in the 2023-2024 school year, Almond said.

The district court’s finding that eliminating gymnastics likely violated Title IX’s effective accommodation requirements “resulted from an incorrect interpretation and application of Title IX law,” Almond said, and the district is seeking reversal of that decision.

What’s unique about this case is that there isn’t evidence any female participant was excluded from participating in any sport within the district, and that’s a fact the district is proud of, Almond argued.

Looking at the three-prong Title IX test, the district court made the “most glaring error” when it analyzed the second prong, which looks at whether a district has a history and continuing practice of expanding female athletics, Almond said.

The district court found the district does have a history of expanding its female programs, but “erroneously found” that the district likely cannot show that it has a continuing practice of expanding its female athletic program because it eliminated the gymnastics program contrary to student interest to participate in it, Almond said.

“That finding was an incorrect application of Title IX law, because prong three of the three-part test looks at whether or not there are interests of individual students in a particular sport, and whether or not those interests are being fully and effectively accommodated,” Almond said.

Prong three should look at whether or not the program expands as a whole, not whether there’s an individual sport that should be provided, Almond explained.

More: Sioux Falls school district claims Title IX test doesn't apply to cutting gymnastics program

A school can eliminate a program as long as it does so in the context of an overall expansion of the underrepresented sex’s program, Almond said.

“That’s fine. You can eliminate sports as long as the overall program is going to expand,” Almond said.

The district court’s opinion honed in on decreasing numbers in the last five years, Almond said, adding it’s appropriate to look at the last 17 years of sports participation in the district.

“The district would certainly like guidance from this court about when it can eliminate any female sport,” Almond said. “I think every school district in the Eighth Circuit would like to know the answer to that question.”

The district has committed to providing gymnastics next year, but would like permission or guidance from the Eighth Circuit Court of Appeals to know that it may eliminate it at some point after next year, Almond said. However, the school board could say it wants to continue offering gymnastics at some point, he noted.

District’s argument a ‘radical departure’ from Title IX law, gymnasts’ lawyer argues

Claire Wilka, representing the student gymnasts, noted the district eliminated gymnastics from its budget despite “fierce opposition” from parents, students and coaches in the community. Proper enforcement of Title IX is vital to ensure women and girls continue to receive equal access to the benefits that participating in athletics offer, Wilka said.

The district’s appeal of the district court’s “well-reasoned opinion” and decision in this case “presents a radical departure from well-settled Title IX law,” Wilka said.

Wilka said the district’s appeal asks the court to apply the Title IX three-part test to high school in a way the district court didn’t have an opportunity to consider, and said the district’s “new methodology” of “counting theoretical opportunities instead of actual athletes” to determine compliance isn’t supported by evidence in the record.

The district court correctly applied the Title IX three-part test despite the district’s new concessions that the test must be applied differently to high schools and only when appropriate, Wilka said.

More: Sioux Falls schools limiting boys' sports participation numbers this year due to Title IX

The district’s argument on the first prong is contrary to what the U.S. Department of Education’s Office for Civil Rights rejected in a 1996 clarification of Title IX, so it was appropriate for the district court to look only at actual athletes in applying the three prongs of the test, Wilka said.

In the last few years, the gap between girls’ enrollment and sports participation has increased again, Wilka said, explaining that an increase in athletes doesn’t account for an increase in enrollment numbers at the same time.

Student interest surveys from November 2021 show more girls were interested in girls’ gymnastics than girls’ wrestling and girls’ softball, tying into prong two of the three-prong test, which looks at the developing interests and abilities of students.

This article originally appeared on Sioux Falls Argus Leader: Sioux Falls gymnastics Title IX case heard in Eighth Circuit Court