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CWLC Wins Sweetwater Title IX Class Action

In a huge victory for girls playing high school sports, on February 9, 2012, San Diego District Court Judge M. James Lorenz ruled that the Sweetwater Union High School District violated Title IX by unfairly favoring boys’ sports over girls’ sports at Castle Park High School (“CPHS”) by giving the boys better athletic facilities, resources and opportunities. The Court also found that the administration retaliated against the girls by firing their beloved softball coach after a parent complained about the inequities. The parties have 45 days to submit a plan to remedy the discrimination.

This case began after CPHS ignored repeated parent requests to improve the dilapidated softball field. The parent requested these improvements after comparing the run-down softball field to the excellent baseball field on campus and after the District spent over $400,000 building a roller hockey rink at CPHS that was used mainly by boys. CPHS responded to the request by firing the softball coach.

Unable to resolve the problem on their own, a small group of softball players and their parents contacted CWLC and our co-counsel the Legal Aid Society Employment Law Center for help. As soon as we began to investigate the case – we discovered that the Title IX problems in the athletic department at CPHS were far greater than just the softball versus baseball field comparison. In addition to providing boys with more opportunities to play sports than girls, we discovered that the CPHS athletic department treated boys better than girls in wide variety of sports-related areas, including coaching, locker rooms, uniforms, equipment, scheduling, publicity, medical and training services, and fund-raising opportunities.

We filed the case in 2007 and were joined by co-counsel Manatt, Phelps & Phillips, LLP. In April 2009, Judge Lorenz issued summary judgment on one of the claims, ruling that CPHS allowed a “significant gender-based disparity” in the opportunity to play sports at the expense of female athletes. This latest ruling was made after a 10-day bench trial in favor of two remaining claims brought by the class: that the District did not provide both sexes equal treatment and benefits; and that the District retaliated in response to complaints of sex discrimination.

In ruling for the plaintiffs, Judge Lorenz noted: “The balance of hardships weighs firmly in plaintiffs’ favor. The inequalities demonstrated at trial should have been rectified years ago by the district. …plaintiffs are entitled to injunctive relief. Defendants are required to comply with Title IX in all aspects of its athletic programs and activities…”

This case is an important reminder that, although Title IX cases filed on the college level are highly publicized, discrimination is just as likely to occur at the K-12 level. Discrimination in elementary and high schools often goes unchecked because younger athletes and their parents may be unaware that anti-discrimination laws apply to public educational institutions as well as to most private educational institutions if they receive federal funding. Each school system is required to implement and enforce Title IX.

Resources

Read Sweetwater Victory Press Release

Read Sweetwater Decision

Understanding the New Title IX Guidance

On April 4, 2011, the United States Department of Education’s Office for Civil Rights (“OCR”) issued a “significant guidance document” intended to assist schools receiving Federal funding in meeting their obligations under Title IX of the Education Amendments of 1972 (“Title IX”). Title IX prohibits discrimination on the basis of sex – including sexual harassment and sexual violence – in any educational program or activity operated by a recipient of Federal funding.  The new guidance, presented in the form of a letter and entitled “Dear Colleague,” explains schools’ Title IX obligations pertaining to sexual harassment and sexual violence.

Key Points:

Schools must respond to sexual harassment and sexual violence.

If a school knows or reasonably should know about student-on-student sexual harassment or sexual violence, Title IX requires that the school act immediately to eliminate it, prevent its recurrence, and address its effects. This is true even if the harassment or violence occurred off school grounds.

School officers and employees must be properly trained.

Schools must designate a Title IX Coordinator to coordinate efforts to comply with and carry out the school’s Title IX responsibilities. Additionally, school employees likely to witness or receive reports of sexual harassment and violence must be trained in how and to whom they should report any such incidents. School employees involved in implementing a school’s grievance procedures should be trained in the school’s grievance procedures, how to handle sexual harassment and sexual violence complaints, and any confidentiality requirements.

Police involvement does not relieve a school of its duty to investigate.

Police reports and police investigations are not determinative of whether conduct violates Title IX; a school is still obligated to conduct its own, independent investigation to determine whether sexual harassment or violence occurred. Schools must carry out a Title IX investigation even if the complainant hasn’t filed criminal charges, and even if police are still investigating the incident.

Investigations must be prompt, thorough and impartial, and use a “preponderance of the evidence” standard.

If anyone – a student, parent or third party – files a complaint of harassment with the school, or the school knows or should know about possible harassment, it must conduct a prompt, thorough and impartial investigation. Schools must use the “preponderance of the evidence” standard in resolving allegations of sexual harassment or sexual violence. Schools using a different standard of proof, such as the higher “clear and convincing” standard, are not in compliance with Title IX.

Schools must notify both parties of the outcome.

Schools must notify both the complainant and the alleged perpetrator, in writing, as to the outcome of the complaint and any appeal. If the school determines that sexual harassment or sexual violence did occur, it may disclose to the complainant information about the sanction imposed on the perpetrator if the sanction relates directly to the harassed student.

Emphasis on prevention, protecting alleged victims.

OCR recommends that schools take proactive measures to prevent sexual harassment and sexual violence by implementing preventive education programs, and developing sexual harassment and sexual violence materials to educate students and employees. Further, schools should make efforts to protect the alleged victim from any additional trauma, placing the burden of moves or rescheduling on the alleged perpetrator if the two must be separated. OCR also recommends such remedial measures as providing the alleged victim with an escort, counseling, medical and academic support, and allowing the alleged victim to drop and retake classes without penalty.

 

My daughter wants to play baseball, but her school says CIF won’t let her play.

“Our daughter is in 8th grade at a private school in Oakland, CA. She plays baseball on her middle school team and in the Oakland Little League, where she has played for about the last 8 years. She would like to continue playing baseball in high school rather than switch to softball, which we consider a different sport. Evidently, there is also legal precedent in other states. She has recently been told by the athletic director of her school that when she enters the high school this coming Fall, she will not be allowed to try out for the baseball team because the school offers softball as an equal sport for girls, and according to the California Interscholastic Federation (CIF) rules, if the same sport is offered for girls and boys, the girls are not permitted to try out for the boys teams.

My wife and I have the following questions:

1) Are softball and baseball officially considered different sports in California?

2) Are private schools subject to Title IX or California Education Code § 221.5 if they don’t receive any federal or state funding?

3) Why are girls allowed to play baseball in other CIF member high schools that also have softball programs, but it’s not allowed at our daughter’s school?

4) Does the CIF have the authority to prevent girls from trying out for high school baseball regardless of whether softball is offered as a sport?

Thank you for your assistance.”

Answer

The Athletic Director that you spoke with was misinformed. The California Interscholastic Federation (“CIF”), permits girls to try out and play on high school baseball teams throughout California and has done so for many years. We confirmed this with the State CIF office today. Baseball and softball are different sports under CIF rules.

Although private schools that receive no federal funding are exempt from Title IX’s requirements, gender discrimination is not a generally accepted ethos at most private high schools. For example, Miranda McOsker was the starting junior varsity and reserve varsity quarterback for Bishop Montgomery High School, a private Catholic school in Torrance, California, a few years ago and two girls are currently playing for Trinity Prep High School’s baseball team in Napa.

Go back to the Athletic Director with this information and hopefully you will get a positive response. You can also contact the State CIF office directly at 916-239-4477. Let us know what happens. Good luck!

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The girls’ locker room is inadequate compared to the boys’. Does that violate Title IX?

“I am the coach of a girls team at a high school in Michigan. Our girls locker room is inadequate compared with the boys. In addition the girls get kicked out of their locker room when visiting boys football and basketball teams are at the school. The boys are never removed from their locker room to accomodate visiting girls teams. These teams are directed to bathrooms to change in. Is this a violation of title IX.

I know you are in California…..just looking for a way to kick start a complaint!

Thanks for any advice you may be able to provide.”

Answer

Since Title IX is federal law, we are happy to answer questions from Michigan or other states.  It may very well be a violation of Title IX if the girls’ locker rooms at your school are inadequate compared to the boys’.   Title IX requires schools to provide girls’ and boys’ teams facilities that are of equal quality and suitability.  This means that the boys and girls should have access to locker rooms that are of equivalent in size and condition.  If male athletes are provided with lockers that are large enough to accommodate their equipment, then female athletes must be provided with similarly-sized lockers. If the bathrooms and showers are well-maintained in the boys’ locker room, then they must be comparably maintained in the girls’ locker room.

Likewise, other arrangements should be made for visiting boys’ teams so that the girls have access to their own locker room during practices and games.

Check out the “What can I do?” section of the website for a step-by-step guide to solving this Title IX issue.

To stay up to date with Just Play Now, please become a fan of Just Play Now on Facebook and follow Just Play Now on Twitter!

Does Title IX require equal playing time for girls on a coed team?

“Recently, our local high school merged the boys and girls soccer teams into 1 coed team. High School soccer requires 11 players on the field. Both the boys and girls teams had plenty players: over 20 boys and 14 girls, but the school principle decided that there needed to be 15 this year. When the teams combined, some of the girls quit, leaving them with 9 girls on the coed team. In our first game of the year, no girls started, but a few did manage to play when we were well ahead. The score of our second game of the year was close, so no girls started and 8 of the 9 girls sat the bench the entire game. One “Token” girl did get to play a few minutes during the middle of the game.

I can’t imagine that the meritocracy of title IX was intended for the girls to participate by setting the bench. My question is: Does Title IX have anything about actual playing time? Since roughly 1/3 of the team are girls, does title IX speak towards anything requiring roughly 1/3 of actual playing time going to the minority to allow for equal representation?

My fear is that if the girls don’t get to play in the games, most of remaining 9 girls will quit soccer this year, dooming any chance of the return of the school’s girls soccer team next year.”

Answer:

The decision to create a coed soccer team when there are enough girls to field a girls’ team may very well be a Title IX violation, especially if your high school school offers football! It’s all in the numbers.

Title IX requires the school to offer girls and boys equal opportunities to participate in sports.

A school complies with Title IX in one of three ways: (1) Substantial proportionality: it offers enough sports opportunities so that the percentage of girls and boys playing sports are very close to the percentage of girls and boys enrolled in the school; (2) History of program expansion: it has a history and continuing practice of expanding the opportunities for girls to play sports; or (3) No interest: it has met all of the girls’ interest in playing sports.

Because football is a popular boys’ sport with large rosters and most schools don’t have a girls’ sport with comparably large numbers, most high schools with football programs fail the proportionality test. When a school cuts a viable girls team, like the girl soccer team at your school, it can’t really claim that it has a history and continuing practice of expanding programs since it just cut one. Similarly, the school must really prove that it’s meeting all the girls’ interest in playing sports when girls who want to play soccer and the coed team doesn’t offer the girls a meaningful opportunity to play.

Check out the “What can I do?” section of the website for a step-by-step guide to solving this Title IX issue.

I think my school is in violation of Title IX. What do I do now?

The first step would be to alert your school that it is in violation – many schools do not know the law and what Title IX requires of them. Your school may be willing to make voluntary changes. Each school is required by law to have a Title IX coordinator. Find out who that person is and tell her about the Title IX problem. If your school is a high school or junior high school, you should notify the principal and the athletic director, and the coaches as well. You may also want to notify the school board.

Put your complaint in writing and be sure to keep a copy of your complaint. Students can voice their concerns by writing letters to school officials and school board members. Parents may also advocate for their children, and coaches for their athletes. Anyone can make a Title IX complaint!

In addition, the Office of Civil Rights (OCR) at the U.S. Department of Education is responsible for enforcing Title IX. You can file a complaint with the OCR regarding your school. The OCR has twelve regional enforcement offices, with one located in San Francisco. The OCR website is www.ed.gov/about/offices/list/ocr.

If you have legal questions regarding your school and Title IX, or if you have been unsuccessful in resolving your claim yourself, you can contact the California Women’s Law Center (CWLC) at (323) 951-1041 or email us.

Does Title IX apply to parks and recreation teams?

No. Title IX is an educational law which applies only to schools that receive federal funding. However, California Government Code § 53080 prohibits gender discrimination in community youth athletic programs and parks and recreation facilities. Like Title IX, this law requires community recreational departments to provide boys’ programs and girls’ programs the same level of services, facilities, and supplies.

I have heard that Title IX requires schools to cut boys’ teams. Is this true?

Definitely not. Title IX does not require schools to cut boys’ teams to comply with its requirement that schools provide girls with opportunities to play sports in proportion to their enrollment in the school. Individual schools may choose to cut boys’ teams, rather than add more girls’ teams, as a means to comply with Title IX. However, this is the decision of individual schools rather than a mandate of Title IX.

A better way to comply with Title IX is to raise additional money to fund additional girls’ teams, to trim the fat from bloated “big sport” budgets such as football or basketball, or to cut funding equally from all boys’ teams rather than eliminating a boys’ sport altogether. The decision to cut teams is school-specific and in no way should be blamed on Title IX.

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