Stephen F. Austin Tries to Cheer and Dance Its Way Around Title IX Case

Stephen F. Austin State University—which in May announced plans to eliminate its women’s beach volleyball, golf and bowling programs—is now attempting to fend off a resulting Title IX lawsuit by arguing that its competitive cheerleading and dance teams should be counted toward its compliance with federal gender-equity laws. This comes despite the fact that neither activity is recognized by the NCAA as a championship or emerging women’s sport.

In a motion filed this week seeking to avoid a preliminary injunction against the program cuts, the Texas-based public university—represented by the state’s attorney general—argued that cheer and dance should be considered legitimate athletic opportunities, effectively equivalent to NCAA-sanctioned sports.

The Division I university is currently being sued by six former beach volleyball players and bowlers who say that their programs’ elimination violates federal law and have “exacerbated” the university’s longstanding pattern of Title IX noncompliance. Along with their civil complaint, the plaintiffs filed an emergency motion asking the court to enjoin the school from eliminating the teams until the litigation has been resolved.

SFA’s defense mirrors a failed attempt by Quinnipiac University nearly 15 years ago, when it tried to replace its women’s volleyball team with a varsity competitive cheer squad to satisfy Title IX.

In Biediger v. Quinnipiac, members of the women’s volleyball team sued after the school announced plans to eliminate its varsity sports teams for women’s volleyball, men’s golf and men’s outdoor track and field, while adding a new varsity sports team for women’s competitive cheer. Both a district court and the U.S. Court of Appeals for the Second Circuit reasoned that competitive cheer does not count as a sport for purposes of Title IX, as it failed to provide sufficient athletic opportunities.

The courts pointed to several key factors in determining that Quinnipiac’s competitive cheer team didn’t satisfy Title IX requirements. They included its absence of off-campus recruiting, frequent competition against club and non-varsity teams, an open-invitational postseason format instead of a recognized championship structure, and disparities in facilities and insurance. 

As a result, Quinnipiac was ordered to keep its volleyball team intact, while its competitive cheer squad—and those at other schools—eventually evolved into the collegiate sport of acrobatics & tumbling. That sport, along with the cheer-like discipline of stunt, recently received NCAA committee recommendations for championship status by 2027.

More recently, a federal court in Kentucky rejected the University of Kentucky’s argument that its competitive cheerleading and dance teams—which, like those at SFA, operate under UK’s athletic department—should count towards Title IX. U.S. District Judge Karen K. Caldwell noted that neither activity is NCAA-sanctioned or -recognized nor has ever been recognized for gender-equity purposes by the Department of Education’s Office for Civil Rights (OCR).

Ultimately, Caldwell ultimately sided with the University of Kentucky, denying the plaintiffs’ request to force the school, under Title IX, to elevate its club women’s lacrosse, field hockey or equestrian programs to varsity status. (That case, Niblock et al v. University of Kentucky et al, is currently under appeal.)

Despite these precedents, Stephen F. Austin is hoping a federal judge in Texas may view cheer and dance, specifically, and Title IX, more broadly, in a vastly different light.

“SFA’s cheer and dance teams can, and should, be counted in its participation numbers because they are 1) structured and administered consistent with other varsity sports at SFA, and 2) they prepare for and engage in competition in a manner consistent with other SFA varsity sports,” the university wrote in its court filing this week.

The motion also emphasized that SFA’s cheer and dance programs have collectively won 39 national championships—though none of them recognized by the NCAA—which represents one-third of the university’s total sports titles.

The Department of Education’s Office for Civil Rights’ three-part test for Title IX compliance, which SFA acknowledges has been “universally accepted” by federal courts for decades, includes: 1) gender proportionality in athletic participation; 2) a demonstrated history of expanding programs for the underrepresented sex; and 3) evidence that the institution is effectively accommodating the interests and abilities of that group with its current sports offerings.

Attached to SFA’s motion is a 2024 analysis conducted on behalf of the university by Title IX consultant Helen Grant, whose findings appear to undercut the school’s legal position.

In her final report from January—four months before SFA announced the elimination of its three women’s teams and its men’s golf program—Grant concluded that the school was already failing to meet the first two prongs of the Title IX compliance test and expressed skepticism about the third.

“Because the female undergraduate enrollment rate is high (63%), Test 1 Substantial Proportionality compliance will be difficult with the current sport offerings,” Grant wrote.

She also noted that the university had not added a new women’s sport since launching women’s beach volleyball in 2019, and therefore was not demonstrating a “continuing practice of program expansion,” in the view of OCR. (Previously, SFA added women’s equestrian in 2005, only to eliminate it three years later.)

As for the third prong—accommodating student interest and ability—Grant cautioned that it would be “difficult to confirm” whether the university was satisfying this requirement without conducting a survey. However, she recommended delaying such a survey until after the 2025–2026 academic year, citing anticipated roster limits tied to the House v. NCAA settlement.

Nevertheless, SFA contends that the Supreme Court’s decision last summer in Loper Bright Enterprises v. Raimondo—which narrowed a four-decade precedent of deference to federal agency interpretations of regulatory law—effectively nullifies OCR’s longstanding three-part test and the requirement for “substantially proportionate” athletic opportunities.

“The Supreme Court has made clear that it is the judiciary’s role to evaluate whether SFA complies with the statute,” the university argued in its motion. “Title IX mandates equal opportunity, not equal outcomes. This Court should not utilize an agency created three-part test to determine SFA’s compliance with Title IX.”

This interpretation of Loper Bright, however, is subject to rebuttal. The decision overruled the Supreme Court’s 1984 ruling in Chevron U.S.A. Inc. v. Natural Resources Defense Council, which held that courts were obligated to defer to agency interpretation when a statute was ambiguous and when the accompanying agency interpretation was reasonable or permissible. This means that a statute that is clear, rather than ambiguous, is not impacted by Loper Bright. To the extent the three-part Title IX test is viewed as clearly expressed, the Supreme Court’s ruling might not help SFA.

Also, while the university claims that the supporting Title IX cases cited by the plaintiffs predate Loper Bright, it omits mention of Judge Caldwell’s decision in the Kentucky case—issued five months after the ruling.

“The school’s filing is astonishing,” said attorney Arthur Bryant, who is representing the athletes along with Colorado-based Title IX lawyer John Clune and local Texas counsel James L. Souter. “It admits the courts have ‘universally accepted’ the (OCR)’s three-part test for measuring whether women and men are being provided with equal opportunities to participate in varsity athletics and urges this court to ignore the test. It contains the report of SFA’s own Title IX expert, Helen Grant, which says it is in violation of the three-part test, and it argues that SFA’s cheer and dance teams should be counted as varsity sports when they aren’t.”

The plaintiffs are due to file their response to the court next week.