Boys win one under Title IX

What’s with Minnesota?  Our northern friends do not allow boys to participate in competitive dance.  Have they not heard of Mikhail Baryshnikov?  Gene Kelly?  Michael Jackson?  Do we not want to encourage all of our students to express themselves in the creative arts?

Two boys took the Minnesota High School League to court over this, alleging that the League’s “girls only” policy violated Title IX and the U.S. Constitution. The 8th Circuit held that the boys were likely to prevail in this case, and thus issued an injunction against the League. The boys can dance!

Minnesota justified its ruling by asserting that girls were the underrepresented sex in high school athletic competition. But the statistics did not bear this out. The court produced a chart showing athletic participation for five school years from 2013-2018.  In two of those years the percentage of girl athletes was higher than the percentage of girls enrolled.  The largest gap in those five years was 1.9%. This was in 2013-14 when girls were 48.7% of students, and 46.8% of athletes.  

The court acknowledged that the law sometimes permits gender-based classifications to remedy past discrimination, but only if there is still a problem. Key Quotes:

In other words, for a government actor to classify individuals based on gender for the purpose of remedying a prior lack of opportunities, the individuals must continue to lack opportunities or the classification is not constitutionally justified.

The parties agree that girls historically have been underrepresented in Minnesota high school athletics.  However, over the past five years, the representation of girls in Minnesota athletics has been almost directly proportional to the number of girls enrolled at Minnesota schools.

Chalk one up for the boys.  More importantly, chalk one up for equal opportunity to nurture and encourage the next Ginger Rogers…..right alongside the next Fred Astaire.

The case is D.M. v. Minnesota State High School League, decided by the 8th Circuit Court of Appeals on March 6, 2019.  We found it at 2019 WL 1050420.


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