By Lindsay Hock
Published: July 15, 2009
Update: July 30, 2009: Both parties in the suit have filed a motion with the court that will delay the litigation until after the FHSAA's Board of Directors meet on September 28, 2009. The parties are still engaged in settlement discussions, however, any settlement agreement must be approved by the FHSAA Board, and the litigation cannot be dismissed until the settlement has been approved. The new proposed litigation schedule is roughly the same schedule as imposed by the Court's earlier order on July 16, but delayed so that the first deadline is 10 calendar days from the Association's September board meeting.
While settlement negotiations are underway, the FHSAA has agreed not to change Policy 6 during its September Board meeting and to notify the plaintiffs of any school districts or schools it is aware are playing fewer games.
Update: July 16, 2009: July 17's hearing cancelled as FHSAA works toward settlement.
U.S. Department of Justice files amicus brief in Cook v. Florida High School Athletic Association on behalf of female student-athletes
Attorneys expected to file temporary injunction as FHSAA opts to rescind. Former Foundation President represents female students
The U.S. Department of Justice has filed an amicus brief today in the Florida case involving cuts to competitive high school sports,
Cook v. Florida High School Athletic Association (FHSSA). The brief, which in its filing implicates a much broader repercussion to the suit than merely regarding the plaintiff and defendant, is in support of a group of female Florida high school students’ intent to continue and in opposition to the Florida High School Athletic Association’s wish to dismiss the case.
On June 16, 2009, six parents, filing on behalf of their student-athlete daughters who attend FHSAA member schools, sued the league under Title IX, the Equal Protection Clause. Plaintiffs claim that FHSAA’s Policy 6 intentionally discriminates against female athletes by denying them equal opportunities with respect to game scheduling. Their complaint contains a similar claim under the Florida Educational Equity Act (FEEA).
Nancy Hogshead-Makar, a three-time Olympic gold medalist in swimming and Professor of Law at Florida Coastal School of Law, is attorney for the parents' group in the case. Hogshead-Makar is also a former trustee and former president of the Women’s Sports Foundation.
On April 27, 2009, FHSAA cut 20 percent of competitive schedules to all sports except football and competitive cheerleading. The decision would have exempted more than 36,000 boys from the cuts, but just 3,000 girls. As its defense, the FHSAA has asked the court to dismiss the gender equity lawsuit by characterizing football as a coed sport under a new policy named Policy 6. The Association’s cuts to competitive schedules that exempt football, it argued, would affect boys and girls equally, since three girls from the state of Florida participated in football last year.
Title IX regulations allow girls to participate on boys’ teams when the school does not sponsor a separate team for girls in that sport and when the school does not provide girls with as many sports opportunities as it provides boys. Only because schools provide a dearth of athletic opportunities for girls to compete is there an exception for girls to join the boys’ teams. But to now re-characterize these boys’ sports as co-ed sports, to be taken out of the comparison between boys' and girls' athletic programs, would severely limit opportunities for girls to play even further.
The amicus brief opines Cook v. FHSAA “involves serious allegations of intentional discrimination against female student-athletes in violation of Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Additionally, the greater interest of the United States in enforcing these two laws is discussed in the brief, including maintaining that the United States has a responsibility to apply correctly and enforce both laws in the broader sense.
Hogshead-Makar to file temporary injunction against dismissal of case
Although the FHSAA voted unanimously to withdraw from the case during an emergency board meeting, the rescinding won’t end the fight for equal rights in Florida. Hogshead-Makar is expected to seek a temporary injunction, which will bar the FHSAA from implementing its scheduling policy. She said, without the injunction, there would be nothing to prevent the FHSAA from trying to reinstitute the cuts at a later date.
“The only thing that has made the Florida High School Athletic Association act is litigation,” Hogshead-Makar told the Tallahassee Democrat, “if that’s true, we’re not representing our clients well if we just go away.”
The injunction states that FHSAA “rescinding new Policy 6 is not an express guarantee that Defendant would not reinstate their illegal Policy 6,” and that “a preliminary injunction by this Court is also necessary because of statements made by Coaches/Athletic Directors that even if the new Policy 6 cuts are rescinded by Defendant, the cuts already made to their schedules will stand, likely rendering them liable for violating Title IX and FEEA.”
Please check back as developments and details of this case will unfurl throughout the week.