Mansourian v. Regents of the University of California, 602 F. Supp. 3d 957 (2010)

Citation: Mansourian v. Regents of the University of California, 602 F. Supp. 3d 957 (2010)
Parent Document: Mansourian v. Regents of the University of California, 602 F. Supp. 3d 957 (2010)
Jurisdiction: United States (federal)
Effective Date: 2010-02-08
Original Source: https://www.courtlistener.com/opinion/3065442/mansourian-v-regents-of-the-uni... ↗

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[4] The regulations establish two components of Title IX’s
equal athletic opportunity requirement: “effective accommo-
dation” and “equal treatment.” “Effective accommodation”
Title IX requirements derive from the Title IX regulation at
34 C.F.R. § 106.41(c)(1), which bases Title IX compliance in
part on whether “the selection of sports and levels of competi-
tion effectively accommodate the interests and abilities of
members of both sexes.”7 The “equal treatment” Title IX stan-
dard, in contrast, derives from 34 C.F.R. § 106.41(c)(2)-(10),
which has been interpreted by OCR to require “equivalence
in the availability, quality and kinds of other athletic benefits
and opportunities provided male and female athletes.”8
   6
     The existence of a private right of action to enforce Title IX is well-
established and not at issue in this case. See Cannon v. Univ. of Chicago,
441 U.S. 677 (1979).
   7
     “Effective accommodation” as a doctrine within Title IX jurisprudence
is analytically distinct from similarly titled doctrines under other statutes
— for example, the obligation to “mak[e] reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individ-
ual with a disability” under the Americans with Disabilities Act, 42 U.S.C.
§ 12112(b)(5).
   8
     The regulation requires OCR to consider, in assessing whether equal
opportunities are available to students of both sexes:
    The provision of equipment and supplies; [s]cheduling of games
    and practice time; [t]ravel and per diem allowance; [o]pportunity
    to receive coaching and academic tutoring; [a]ssignment and
    compensation of coaches and tutors; [p]rovision of locker rooms,
    practice and competitive facilities; [p]rovision of medical and
    training facilities and services; [p]rovision of housing and dining
    facilities and services; [p]ublicity.
34 C.F.R. § 106.41(c).
2220 MANSOURIAN v. REGENTS OF UNIVERSITY             OF   CALIFORNIA
Department of Education Office for Civil Rights, Clarification
of Intercollegiate Athletics Policy Guidance: The Three-Part
Test (Clarification) (1996), available at http://www.ed.gov/
about/offices/list/ocr/docs/clarific.html. Effective accommo-
dation claims thus concern the opportunity to participate in
athletics, while equal treatment claims allege sex-based differ-
ences in the schedules, equipment, coaching, and other factors
affecting participants in athletics. See McCormick v. Sch. Dist.
of Mamaroneck, 370 F.3d 275, 299 (2d Cir. 2004) (holding
that a competition schedule permitting male but not female
high school soccer players to participate in state and regional
championships deprived female players of equal treatment
under Title IX); see also Pederson v. La. State Univ., 213
F.3d 858, 865 n.4 (5th Cir. 2000) (explaining the relationship
between effective accommodation and equal treatment
claims); Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1 (2d
Cir. 1999) (same). So “an institution may violate Title IX
solely by failing to accommodate effectively the interests and
abilities of student athletes of both sexes,” even if the benefits
provided athletes of both sexes are equivalent. Kelley v. Bd.
of Trs., 35 F.3d 265, 268 (7th Cir. 1994); see also Roberts v.
Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993);
Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993).

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