your st thank you a good afternoon and made it please the court i am pleased to have represent the plaintiffs in attendance in this matter which in my view provides this court with a case of st impression among the circuit courts of appeal in the united states and the question for the court is pretty straightforward from my perspective the court is simply being asked to answer the question of whether the three part test established in a nine hundred and seventy nine dollars policy interpretation by the office for civil rights provide the sole basis for determining whether there is a violation of title nine's provisions against sex discrimination we believe that the answer to this question is a strong and clear no for several reasons st of all the provides that recipients of federal financial support may not discriminate on the basis of sex it does not provide a means for determining such cases of discrimination and i would submit that it is analogous to laws which prohibit sex discrimination employment such as title seven and as we have seen over the years the courts have devised various methods for evaluate and proving claims of sex discrimination in this case additionally nd reason is that the three part test is not required by the regulations that congress required the department of health education and welfare to promulgated in one thousand nine hundred and seventy four these regulations are entitled to  chevron deference and these regulations require not only equal opportunity for men and women but as stated very clearly in thirty four see how far one six forty one they require equal opportunity not only in terms of how many young men and women will participate in after let it can devers but also requires  the office for civil rights but also courts hearing these claims to look at issues having to do with the selection of sports and the levels of competition and those are clearly not issues that are our contentions but more broadly i would frame it this way which is that if we're looking at the three part test and determining that it has usefulness to the courts for  evaluating claims under title nine then i believe that we should not be picking and choosing as respondents would have the courts do the three part test as well as the requirements that the court assess opportunities for participation in different kinds of sports including but not only contact sports and also says levels of competition are equally part of the one thousand nine hundred and seventy nine policy memorandum which is simply as the court knows a memorandum which the office for civil rights wrote to itself and is used by office for civil rights monitors when they evaluate compliance with title nine but no more than the office for civil rights is allowed to pick and choose which parts of the policy interpretation it wishes to enforce likewise the respondents and universities should not be allowed to pick and choose if the respondents are going to say as they do here that the three part test provides a basis for evaluating these claims it frankly candidly does not make sense to say that we should only take some clarification did that in trying the three part test as the exclusive means of a sudden compliance or not well thank you for that question i because i think it really supports our position because not only in way to determine whether the absolute numbers are there in terms of participation but that's not the sole criterion for deciding whether there has been a violation and the  deference you we are deference because it is the agency's own considered valuation of its requirements but again to get back to my proceeding point that policy interpretation i think is  le to equal deference but i really want to address the shell and our point because that is again a big part of the respondents argument here they say that the circuit courts including this court have uniformly relied on the three part test and we agree with that but i believe that it's necessary for the court to dig into that reliance a little bit and to reach an understanding as to why that's the case we would submit that it is the case because almost invariably the cases that have been brought under tired and lined against colleges and universities in the united states ha addressed the simple lack of participation by male and female students so that is as far as the courts have needed to go in a stance people who have challenged universities have pointed out in literally all of the case of cited certainly all of the circuit court cases cited that the colleges and universities did not reach the numerical threshold which could be evaluated under the three part test so the three part test provided the basis for the court's decisions and the courts have not had to reach the issues posed by this case which is why i began my argument by saying this is a that part of the policy and spock's about quote the opportunities for members of the lead at saks must have historically been met and i searched the plaintiff's complaint for any evidence along those lines and found  which points to the fact that in the state of north dakota hockey is the number one sport and historically the mets team has existed i believe since the  sports this is not appear to be one of them it tends to mirror the regulation itself which just talks about historical limitations so presumably would be across borders that you need to show there is historical exclusion so my enough to just show that there's exclusion and eye socket and if so walk up to it well i believe your honor that the requirement of exclusion certainly can be understood as you've suggested but i believe it can also be understood in the context of the other provisions because we're not simply relying on the contact sports provision we're also rely on the provisions that requires scrutiny of the selection of the sports by the university and that selection of sports contact sports and not contact sports as well as the competition and we focused on that those two issues i would say to a large extent simply because we wanted to show that every university is not the same if we were bringing this case against the university of florida i doubt we would be arguing about ice hockey we want to point out that here you have the north dakota ice hockey is the number one sport that once this university created a team it participated not only among the thirty five division one women's ice hockey teams in the country but the eight teams in its conference which is the most exclusive and successful and demanding conference for women's ice hockey north dakota as well as minnesota and wisconsin and others and we pointed out that the women of north dakota had satisfied by their participation and by their successful participation both the interest which is addressed by the regulations and by the level of competition i made the time this university cut off this team it was the th right women's ice hockey team in the united states and in context here we think the one point of comparison is the history of women's ice hockey in north dakota but the nd point of competition which does a bouquet the cont issue is by comparison to the men's ice hockey team which again existed for some eighty years before the women's team but is also and i think everyone in north dakota understands this is a source of great pride and interest to young people in this state and that is why frankly we decided to bring this case because it seemed such a obvious point of objection that in the state of north dakota the capital of ice hockey the university would choose to eliminate us for which in some less than twenty years had achieved a status of prominence and success and was part of the phenomenon which again speaks to the regulations of interest rate i mean certainly in the upper midwest interest in women's ice hockey is exploding as we allege in the complaint  the regulation on separate teams contemplates that there will be some contact sports teams for one sex that are not matched with a team for the other sex and therefore the policy guidance that purports to require offering a separate team conflicts with the regulation right is now why you are arguing for a football team otherwise you'd say it's required because you say the policy guidance is mandatory well again i think the policy guidance is equally mandatory in all of its provisions and that the requirement and again if i can what i spoke to the football question if there was a if there was interest among women to play tackle football when your position require the university offer a tackle football team program if there were young women playing tackle football in high schools across north dakota and if there were young women playing tackle football in clubs and then coming to the university and demand into play tackle football none of which is true but if those things were true i think that's what we would be arguing you know but most things have to be true that's the that's necessary to do demonstrate sufficient interest in ability to have those kind of club and high school programs you know i'm not sure those are the exclusive ways to establish that level of interest but clearly not only the advice not only the nine hundred and seventy nine policy but the regulations about interest and competition right you know we i  prefer the chorizo question are we not talking hypothetically hypothetical that's not this case but if you could address whether the regulation contemplates situations where there are not soccer teams and whether the policy guidance goes beyond the regulation and therefore should not be controll the regulation regulation which we believe is controlling does require an institution to assess interest history levels of competition so we don't need to go to the policy guidance to address those questions to the extent to which the contact sport part of the guidance is not in compas in the regulations i do not believe the court needs to go there we we can rest our case and prefer to rest our case on the regulations themselves and we think that the policy guidance may provide some help but as your question suggests your honor it should not be the be all in the end all especially if the court believes that the guidance is not always consistent with the regulation so we'll go back to the regulation and i did want to say one other thing about the three part test right is that the university's position would require absurd results if the three part test is the only basis for making determinations and i like our hypothetical there imagine if the university has two hundred dollars athletic spots for men and women and for the men as football teams basketball team i stocky baseball of variety of sports and for women it has cross country runner and but the participation numbers are the same i do not believe that that would be a lawful result if challenged in court although it would thank you your honor that afternoon they have to leave the court when name is dan cohen with a law firm of nelson ballance and on the special assistant attorney general for the state of north dakota this afternoon representing north dakota university system as well that member institution of the university of north are a lot of other provisions of title up it cover sexual discrimination in pregnancy sexual misconduct equitable treatment number of different things that are simply not an issue in this case as the district court found in his or her age but fortunately then how would you address is tricycles hypothetical i would go back to the football analogy on campuses across the country right now we didn't have a one hundred athletic opportunities provided to male football players opportunity to that of and for purposes of this example we're sending a high profile football team but ultimately you had an olympic synchronized playing thing for women and it was perceived as a high and equitable treatment it may well be receiving comparable treatment so i don't want to put your stereotypes into this hypothetical but ultimately that question is a question about equitable treatment it is not about participation opportunities and this court has held that participation opportunities are exclu we have to look at a parity requirement on the less the sport involves a contact sport but as he looked to his store own limitations or previous limitations we again have to come back to the controlling three problems test which is written in the present appellant's pleading fails to meet and again it is comparable to probable under the nine hundred and seventy nine policy interpretation language for context for us it says that it must do so for members of the other sex if that was no storm limitation on opportunities for women in north dakota thank you your honor that's an excellent question i would think would be the opposite of what happened here f so there are a number of public documents that public universities are acquired she to produce on a whole basis and one of particular is called the equity in athletics disclosure act report also following the elimination women's hockey team u n d was subject to two different  you don't get to the rest of the analysis that's not true as a matter of public record because the baseball team muslim a name in the ninety's but wouldn't historically refer to a longer time period than the no no your honor i'm sorry the baseball team was eliminated the year before women thought he was eliminated the challenger case was concerning the elimination of men's wrestling several years prior so really what this comes down to is what does it mean to the historically women the plaintiffs admitted they have no were assuming a few things for the sake of this discussion which got us down to whether this policy guidance is would be met if it is finding and you are saying no it's not mad because women have not historically been to get to and let me take a step back is that the language from the policy interpretation here is not law to begin with regardless of whether or not we defer to it however the word historical is never again utilized in any of the gu in this case if it is binding so we have to talk about what historically been limited means and our argument is that that to the extent that were historically could conceivably be late back to  and prior it is inconsistent with regulatory language which is not use the word historically in its that uses or previously frankly i do not know the answer with respect to nine hundred and seventy nine and prior  argue it and so it fails if all quietly we don't have an obligation to take us in the other direction but i will note that the current language that this court has adopted and this court has held to be a safe harbor uses the present tense not historically not the regular regulatory language so b but then ultimately we have this court's opinion and challenge or which takes us to the present tense whether they are under represented and it is public record that women are not or at least at t under represented gender so there are choices their decisions matter number one if there is an under represented gender which there is not here but then it cascades through problem one into problem two and then ultimately the university also fails pro couldn't the plaintiff still say you're not giving us decent locker rooms and travel and all arrest whereas you're giving the other sex those things in the context courts would not absolutely division so the same harbor wouldn't eliminate that right i just want to clear up when we come to my absolute immunity we're only talking about one portion of the of the statute or the regulations right but absolutely correct safe harbor on that one was in that one respect absolutely correct that the correct but ultimately our position that student athletes do not have a right to participate in athletics we have multiple cases that have held that in within the circuit versus three university open quote title mine does not establish a right to participate in any particular store in one's college we have that in miami university a set of the th circuit we have the th circuit equity athletics case but moreover in these types of cases where we're dealing with that pitiful participation liability if that does present a difficult hypothetical but i can tell you that in quickly in university athletic departments across the country you have a parallel to that for the most part you're looking at in men's athletics programs only approximately six sports because football occupies a one hundred or five roster spots where the women's outlet it opportunities at a minimum you're looking at ninety and the women's teams that most universities sometimes twelve sometimes fourteen in part because they're trying to offset the number of football players but there's nothing whatsoever wrong with the school that offers football basketball the it's fall and traffic for men and twelve forts for women with more diversification of those opportunities there's nothing what that when there's time sports for man means there should be more support for women in order to comply with title not what's your response to that but i think that the supreme court has set for clearer guidance that we should not abandon well known precedent across every single judicial diff circuit as well as o c r itself to change the rules forty years down the line when it is universally accepted that the three prong test provides the test for equitable participation opportunities and so to change course you're forty years later i don't think mr siegel fleeting has given us sufficient grounds to step away from forty years what's obvious is that the university has not responded to the question of two hundred men intense sports two hundred women in another and that's because their position would  be rendered illogical if i said and i think you responded by saying it could be sufficient but you'd have to have a sport there were two hundred dollars women were really interested in participating and it would have to be sort of a reverse football analogy golf is just not a realistic hypothetical case there's no such sport ok but it's all right that is correct but the problem with relying on the three part test as mechanically as the university does is that the example raised by that hypothetical cannot be answered and i do want to point out that the united states supreme court has never clarification section one the o c r says compliance with the three parts as it is not sufficient to show compliance and that is because getting away from the policy advice or memorandum when you look at the regulation particularly section eight thousand eight hundred and forty one c one requires consideration of whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes and compliance with those provisions is not met by showing that there and he will number of men and women in your athletic programs and that is what we have focused on in our complaint we have not alleged a violation of the three part test what we have alleged is that un d in paragraph forty five of the complaint failed to consider which require the athletic interests and abilities of women the level of competition the level of interest the performance records is stork limitations and the interest in ability and that's why in our complaint we focus so much what is the case in north dakota concerning history interest of willingness but also the evolution right we would not be do we simply just assume the situation unless we are under st trapped or her sorry unless we understood that there is a change in our society and that change exists in north dakota as young women are pla ice hockey and want to play competitively at the interscholastic level and we think you won t has violated their rights by making the decision they made without considering these factors required by title this is not this is an issue that requires further investigation on our part historically we focused on the issue of ice hockey because that's what we know about and we know that before nine hundred and ninety eight was a lot of history when men's interest in ice hockey was accommodate it and women's interest in ice hockey was not even on the table for conversation