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Sports and the Law: Can Schools ‘Cheer’ Their Way into Title IX Compliance?

Wednesday, February 4, 2009 1:59 PM - By Marc Edelman

Last Tuesday, the Wisconsin Supreme Court held that a cheerleader who allegedly failed to spot his teammate was immune from liability under a Wisconsin assumption-of-risk statute, which forbids bringing a claim against any amateur athlete who acts negligently while performing a sport. In reaching this conclusion, the court explained that competitive cheerleading was indeed a “sport” based on the American Heritage Dictionary’s definition of that word: “an activity involving physical exertion and skill that is governed by a set of rules or customs.”

Upon learning of this decision, one astute Above the Law reader asked if courts would similarly find cheerleading to be a sport under Title IX of the Patsy T. Mink Equal Opportunity in Education Act. This is an especially interesting question because some schools including the University of Maryland and Seton Hall University have granted varsity status to their disproportionately female cheerleading squads. Thus far, the Department of Education has not taken a stance on these particular schools’ Title IX compliance, nor has there been a test case in our court system.

After the jump, should cheerleaders count for Title IX purposes?

cheerleader Title IX oregon.JPGBefore assessing whether a particular school may safely count cheerleading as a varsity sport for Title IX purposes, it is important to clarify that the recent Wisconsin Supreme Court ruling does not provide any direct guidance. Indeed, Title IX, as a federal statute, is subject to interpretation only from federal courts. In addition, the definition of “sports” under Title IX may differ dramatically from a definition of the term “sports” in a tort-law statute. As Professor Howard Wasserman recently discussed on his website Sports Law Blog, the word “sports” has several potential definitions.

Beyond that strong disclaimer, however, the Wisconsin Supreme Court decision is still noteworthy for Title IX purposes because it draws attention a new variety of cheerleading, often known as “competitive cheer.” Competitive cheer involves participants that, much like gymnasts, perform stunts, which earn points based on originality, strength and dexterity. Because competitive cheerleading is in some ways more like gymnastics than organized rooting, it is unlikely the sort of activity that the U.S. Department of Education’s Peter Holmes had considered when he proclaimed in a 1975 letter that although cheerleading was an extracurricular activity, schools may not count members of their cheerleading squad for purposes of calculating an athletic department’s Title IX compliance.

Since Holmes’s 1975 memo, the advent of competitive cheer has led to some softening of this position. For example, in a formal letter written in the year 2000, National Coordinator of Title IX Athletics for the Office of Civil Rights Dr. Mary Frances O’Shea explained her department’s new position that “although there is a presumption that cheerleading is not a sport, determinations will be made on a case-by-case basis.”

Applying O’Shea’s standard, it now seems possible that a school such as the University of Maryland may count its male and female “competitive cheer” team members as varsity athletes for purposes of complying with Title IX. This view is supported not only by the nature of the activity of competitive cheer, but also by the fact that members of the University of Maryland’s competitive cheer team enjoy equal benefits to Maryland’s other varsity athletes, including scholarships, their own locker rooms, a team trainer, and extra educational support. This conclusion is also supported by evidence that University of Maryland’s “competitive cheer” team is entirely separate from the school’s more traditional rooting cheerleaders.

By contrast, courts would be less likely to allow a school such as Seton Hall University to count their cheerleaders as varsity athletes for Title IX purposes. This is because, according to the account of one recent Seton Hall varsity cheerleader, her school does not distinguish between its competitive cheerleaders and its spirit squad. Moreover, even though the Seton Hall cheerleaders are varsity athletes in title, according to at least one former cheerleader they historically have been “denied any of the privileges of the athlete community.”

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Marc Edelman is a Visiting Assistant Professor at Rutgers School of Law-Camden. He will be joining the faculty of Barry Law School in Fall 2009. His bio is available here, and his publications, here.

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