Appeals Court Backs Boys’ Bids to Join High School Dance Teams

By Mark Walsh — March 06, 2019 3 min read
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A federal appeals court on Wednesday ordered an injunction to allow two Minnesota high school boys to try out for and participate on their schools’ competitive-dance teams.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, reversed a lower court and ruled unanimously that a Minnesota State High School League rule limiting winter competitive dance to girls likely violates the boy’s 14th Amendment right to equal protection of the law.

The league defended the rule by arguing that girls’ overall athletic opportunities have been limited, while boys’ opportunities have not. And it pointed to a state law that says it is not discriminatory to limit athletic opportunities to one sex or the other when one sex has faced limited opportunities in a particular sport.

But the appeals court was not buying it.

“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,” the court said in its March 6 decision in D.M. v. Minnesota State High School League.

In fact, statistics submitted in the case show in both the 2016-17 and 2017-18 school years, boys have been slightly underrepresented in high school athletics in Minnesota.

“Thus, the league has not shown that the underlying problem it initially sought to remedy by creating all-girl teams—the overall underrepresentation of girls in high school athletics—continues to exist, at least in Minnesota,” the court said.

The ruling came in a case brought by two 16-year-old male students identified in court papers as D.M. and Z.G., who attend school in Maplewood and Minnetonka, respectively.

“Both are passionate about dance and have participated in various dance classes and programs,” the court said. “Both want to dance on their schools’ competitive dance teams but ... have been prohibited from doing so.”

The boys have come forward in media outlets as Dimitri Moua and Zachary Greenwald.

The boys and their parents sued under the equal-protection clause and Title IX of the Education Amendments of 1972, which bars sex-based discrimination in federally funded education programs. A federal district court rejected their request for a preliminary injunction, ruling that they were unlikely to prevail on the merits of their claims because a girls-only dance team was substantially related to the government objective of increasing girls’ athletic opportunities.

The appeals court reversed based on the boys’ equal-protection claim, citing the U.S. Supreme Court’s 1996 decision in United States v. Virginia, which struck down the exclusion of women from the Virginia Military Institute and held that the government must show an “exceedingly persuasive justification” for a gender-based classification.

“The league does not offer any such justification,” the court said. The league had pointed to a 1992 Rhode Island Supreme Court decision that upheld a ban on boys from participating on girls’ field hockey teams. But the 8th Circuit court said the safety concerns over boys playing field hockey with girls were not present with competitive dance.

The Minnesota league had the support of the National Federation of State High School Associations, as well as state high school athletic authorities in Arkansas, Missouri, Nebraska, and North Dakota. But the court rejected the national federation’s arguments that girls are underrepresented in athletics nationally, saying the federation’s data were incomplete and irrelevant to the Minnesota figures showing that girls were not underrepresented.

The winter dance team season is over in Minnesota. Both boys are currently juniors, so the injunction will apply to their senior year, the court said.

A version of this news article first appeared in The School Law Blog.