Guest Column by Mark Martel Updated summary of the Neal v Board of Trustees Title IX case

By Mark Martel | Jan. 02, 2003, 12 a.m. (ET)
Introduction Neal v. Board of Trustees (Neal), a leading Title IX case, is now on a fast track to the United States Supreme Court. A three-judge panel of the Ninth Circuit Court of Appeals, in its second decision in this case, has ruled that a university may eliminate male athletes solely to create proportionality. This ruling is directly contrary to the intent and language of Title IX, and completely ignores the facts in the case. Those facts (see below) make Neal a perfect vehicle for the U.S. Supreme Court to overturn the current (illegal) interpretation of Title IX. Factual Background Neal ideally illustrates how the current enforcement of Title by the Office of Civil Rights (OCR) actually violates the law and leads to perverse results. OCR essentially requires schools to make their athletic programs "gender proportional" to their student body. ("Proportionality" refers to a situation where the gender composition of a school's varsity athletes matches the gender composition of its student body.) For example, a school that has a student body that is half male and half female must have varsity athletes who are half male and half female to satisfy the proportionality requirement.) The Neal case perfectly shows how proportionality requirements lead to unequal opportunity -- in violation of Title IX. In this case, the wrestlers at California State University, Bakersfield (CSUB) have sued the university to stop the elimination of male athletes solely to create gender proportionality. Females at CSUB have 9 varsity teams to 6 for males; and women's teams have far more scholarships and higher budgets than men's teams. Females at CSUB are about 60% of the school's varsity athletes. Yet because females are an even higher percentage of the student body (64%), men's teams have been capped to reduce the number of male athletes. Women's teams not only have no caps -- they have requested minimums which are higher than the caps on the comparable men's teams. (For example, the women's swim team is asked to have at least 35 females; the men's swim team is capped at 22.) CSUB has cut males to meet caps on its men's teams, while the women's teams have frequently been unable to meet their minimum squad sizes due to insufficient interest. CSUB has formally acknowledged that the only reason it capped the men's teams was to create proportionality. The caps do not save money that could be shifted to women's programs, so there is no argument that capping the men's teams does anything to increase opportunities for women. And the caps do not somehow make up for discrimination against females, because there has not been any discrimination against females. On the contrary, females at CSUB have had far more athletic opportunities than males -- even though CSUB's student interest surveys show that more males than females want to play varsity sports. It is so clear and undisputed that females have more athletic opportunities than males at CSUB that CSUB formally stipulated to the court that it is aware of no allegations that its athletic program has discriminated against or provided less opportunity to females. Procedural History of Neal v. Board of Trustees This is the second ruling by the Ninth Circuit in this case. In December 1999, a three-judge panel reversed a district court injunction prohibiting CSUB from capping the men's teams simply to create proportionality. The district court concluded that CSUB's squad size program was a gender quota which violated Title IX. There has never been any serious argument that the district court was wrong in this conclusion. Title IX prohibits excluding someone because of their gender; and it specifically prohibits quotas. In fact, congressional sponsors of Title IX repeatedly said that banning quotas was a principal purpose of Title IX. Despite this, the Ninth Circuit panel ruled in December 1999 that schools could eliminate male athletes simply to create proportionality (a quota) as a "remedial action" which was permitted by Title IX. There was never a shred of evidence supporting the panel's conclusion that CSUB's caps on men's teams was "remedial," and the panel cited no evidence in support of this conclusion. In response to the panel's December 1999 ruling, we decided to return to the district court to obtain all the evidence showing that the caps were not remedial in order to position the case for an eventual appeal to the U.S. Supreme Court. After returning to the district court, we obtained the following evidence: * Evidence showing that females at CSUB had more athletic opportunities than males for many years, despite the fact that more males expressed an interest in playing; and * Stipulations signed by CSUB and submitted to the district court stating that creating proportionality was the only reason for capping the men's teams; and that there has been no discrimination against females to "remedy." This evidence eliminated/eviscerated/refuted the purported basis for the Ninth Circuit's previous ruling that capping CSUB's men's teams was a "remedial action." The case subsequently returned to the Ninth Circuit, this time with undisputed, irrefutable evidence that cutting male athletes was not remedial, and violated Title IX. The Ninth Circuit Ruling and Current Status of the Case The panel that previously ruled in this case took jurisdiction over the new appeal, and simply ignored the evidence refuting its prior ruling that eliminating male athletes was a "remedial action." The panel also ignored the legal authority showing that Title IX banned quotas and required schools to accommodate the athletic interests of males as much as those of females. In essence, the panel said "nothing in this case has changed; schools may cut males as a permissible 'remedial action' for the reasons stated in our previous ruling." We have now requested that the Ninth Circuit rehear the case before a panel of 11 judges. Such a request is effectively required before appealing to the U.S. Supreme Court. Rehearings are rarely granted, although we should have a reasonable chance of getting one here, since the panel's ruling was so directly contrary to the facts and the law. The Ninth Circuit only has a few weeks left to decide on whether to rehear the case. During that time, publicity would be very helpful to make the other judges of the Ninth Circuit aware of the importance of this case. The Road To The Supreme Court If the Ninth Circuit does not grant a hearing before an 11-judge panel, we will then appeal this case to the United States Supreme Court. On the other hand, if the Ninth Circuit does rehear the case and overturns the ruling of the three-judge panel, CSUB will appeal. One way or another, this case will be appealed to the U.S. Supreme Court, probably in the first few months of 2003. The Supreme Court accepts only a small percentage of petitions for review. The cases it takes are generally those that have high visibility and implicate important public policy issues. We will therefore need substantial publicity to help make the Supreme Court justices and their clerks aware of how Title IX has been subverted by the Office of Civil Rights and the appellate courts, and how Neal illustrates what is wrong. We will also need significant funding to pay bills in the case and to get amicus ("friend of the court") briefs. Finally, we need help to pay for a website we are currently developing to provide up-to-date information on the case and reference material on Title IX for journalists and anyone else interested in this issue. Note: Mark Martel is the attorney representing the CSUB wrestlers in the Neal vs. Board of Trustees case. He was a wrestler at Stanford University.