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WSF Advocacy Win in California

Another win for the good guys! Ahem…we mean, high school girls.

On Friday, the appellate court in the Ninth Circuit upheld a trial court’s ruling that the Sweetwater Union School District in California violated Title IX when it provided inferior facilities and resources to girls, and retaliated against those girls when it fired their coach who had advocated for the girls’ equal treatment.

The Women’s Sports Foundation filed an amicus brief in the case, a “friend of the court” brief, in support of the high school girls and their lawyers at Legal Aid Society-Employment Law Center, the California Women's Law Center and Manatt, Phelps & Phillips.

“The court’s holding that kids have a cause of action for retaliation when a school fires their advocate-coach is particularly heartening. Title IX law, as it applies to athletics, is unusually consistent and clear around the country, and this additional protection will help remedy the persistent gender inequalities in athletics,” said Nancy Hogshead-Makar, WSF’s Senior Director of Advocacy.

When it came to Title IX’s “equal opportunity” mandate, the court held that Sweetwater failed to satisfy any aspect of the three-part test for equality.

• "The court held that Sweetwater could not satisfy the first test used to measure whether schools are providing girls with equal opportunity to play sports, “proportionality.” The school’s percentage of female athletic opportunities was at least 6.7% below that standard, and represented 48 more girls playing sports. Clearly, 48 girls can sustain at least one viable team – probably two or three.

• Sweetwater could not satisfy the second test, “a history and continuing practice of expanding opportunities” for girls since the number of athletic opportunities actually decreased, from 156 to 149, even though the school had more girls’ teams.

• Sweetwater could not claim to be meeting the third test, “effectively satisfy the interests and abilities of female students”, when it eliminated a girls field hockey team twice, both times for reasons that were unrelated to the girls’ lack of interest in field hockey. Additionally, the court held that the school’s inability to find a coach could not be used to prove that the girls lacked an interest in a sport.

• Probably more importantly, the court held that the plaintiffs were not required to prove that the school district failed to meet Prong 3: 
    o “…Title IX plaintiffs need not themselves gauge interest in any particular sport. It is the school district that should evaluate student interest “periodically” to “identify in a timely and responsive manner any developing interests and abilities of the underrepresented sex.” 
    o This is important because the Women’s Sports Foundation is aware of some school districts and administrative complaints that are unfairly dismissed because the person making the complaint was unable to provide a list of girls that were ready to play on a team that had not yet been formed at the school. This case should clarify that the burden is on the school to demonstrate that they’re meeting the interests and abilities of their student athletes.

• On other good news, the court also held that plaintiffs could require a school to start a sport, even if the sport was not currently a state high school athletic association sanctioned-sport. This will be good news for burgeoning sports like high school crew, girls’ wrestling, lacrosse, rugby and fencing.

• For the first time, the court held that the plaintiffs – a class of female athletes – had a claim for retaliation, when their coach was fired after their coach complained to the district. Here, the girls did not complain to their school about the unequal treatment; it was their coach. In the past, only the softball coach could have asserted this claim if he or she had made the Title IX complaints. Here, the court held that: 
    o “Sweetwater’s position—that Plaintiffs lack standing because it was not they who made the Title IX complaints—would allow any school facing a Title IX retaliation suit brought by students who did not themselves make Title IX complaints to insulate itself simply by firing (or otherwise silencing) those who made the Title IX complaints on the students’ behalf.”

We’re especially proud of this case because several Women’s Sports Foundation research reports provided the foundation for the amicus brief. Her Life Depends On It II: Sport, Physical Activity and the Health and Well-Being of American Girls, was vital to emphasize the roles that sports play in the physical and social health of girls and women.

Another cornerstone of this brief was our 2012 research report with the SHARP Center for Women and Girls, The Decade of Decline: Gender Equity in High School Sports. Sadly, the participation trend between boys and girls is moving away from equality in high schools. This report found that schools have increased sports participation opportunities for boys at a faster pace than they have for girls over the past decade. In other words, the equity gap is widening, rather than closing, as schools continue to favor providing sports opportunities for males over females. This growing gap exists for all regions of the country, all types of communities, and all schools with differing economic resources.

In California, girls also lag behind boys in high school athletic participation, by a significant margin. In 2011 – 2012, California boys received 456,633 participation opportunities while girls received only 325,279. (NFHS, 2012) As outlined in the Decade of Decline report, compared with the entire student-body, 39% of California’s high school boys had the opportunity to participate in sports, while only 29% of its girls enjoyed the same opportunities and thus the same benefits.

Women’s Sports Foundation’s research continues to fuel our advocacy work. Research has been vital to the current win in Ollier, et al. v. Sweetwater Union High School District, et al. as well as the new California statute requiring reporting and transparency in schools.