By Lorraine Berry
Lorraine Berry is an Assistant Editor at Coaching Management.
Coaching Management, 8.7, October 2000, http://www.momentummedia.com/articles/cm/cm0807/equal.htm
Sometimes, inequity strikes you like a slap in the face, but, after you first notice it, it dawns on you that it’s everywhere. That’s what happened to Kim Egan, a parent in the Boone County, Ky., school system, when she analyzed the differences between her daughter’s softball program and her son’s baseball program at their high school.
“I always had to go to Chrissi’s school at 2:30 to pick her and other players up and transport them to their practice field,” Egan says. “Baseball players just stayed at school since their fields were on campus. The baseball team had an indoor batting cage. Softball didn’t have a batting cage at all. Baseball had nice dugouts. Softball players just sat in the cold drizzle getting soaked. Baseball had school manpower and equipment to maintain their field. Softball parents brought their own mowers and the coach used her own vehicle to drag the field. Baseball had large sets of bleachers. One softball parent got a set of used aluminum bleachers donated. Baseball had an electronic scoreboard. Softball had a scorekeeper you could ask the score. Baseball had faculty and students stay after school to watch them play. Half of the school didn’t even know the high school had a softball team and the other half had no idea where the field was located. Baseball had direct access to locker rooms. Softball was two miles away.”
As most softball coaches know, this scenario is not uncommon. Many coaches and athletes are so excited simply to have a team that they don’t see the inequities. But, even if they do, who wants to complain? Softball is often the new kid on the block, which makes it harder to march into an administrator’s office and demand change.
However, United States law says you have a huge right to complain, and that your athletes are being shortchanged if you don’t. It is illegal to not give girls the same opportunities and resources as boys in any school activity. Yet, at the same time, inequities are widespread.
So, how does a coach ensure that his or her softball team receives equal treatment? In this article, we talked to those who have spent time in the Title IX trenches about: how to assess your own program; how to ask for inequities to be corrected, and, if asking doesn’t work, how to make a Title IX complaint or take your case to court.
Title IX
Title IX has been on the federal law books since 1972, when it was added to the 1964 Civil Rights Act. It says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The regulations went into effect in 1975; any public school receiving federal money was to be in complete compliance with the provisions of Title IX by 1978. A quarter of a century later, it’s safe to say that a large number of programs across the country—at both the high school and college levels—are not in compliance.
A series of court rulings have established a three-prong test for determining whether girls are receiving equal participation opportunities in relation to boys. The test asks: 1) Are the numbers of opportunities to participate in interscholastic (or other school-sponsored) athletics proportionate to the enrollment of each gender at the school? 2) If one sex is underrepresented in athletics, can the institution prove that it has a history, and a continuing practice, of program expansion that reflects the interests of the students? 3) If one sex is underrepresented, and the school cannot demonstrate prong number two (above) can it show that the students’ interests and abilities are being accommodated by the present system? To be in compliance, a school must be able to answer “yes” to one of these three questions.
In addition to asking a school to show that it has provided equal opportunities for athletics, other questions determine whether it treats male and female athletes the same. Some of the areas that must be in compliance with Title IX include: equipment, game and practice scheduling, coaches’ salaries, facilities (including locker rooms and competition facilities), publicity, and access to athletic training services. This list is not exhaustive, but it is representative of the level of support that a girls’ program should be receiving in relation to the boys’ program.
“What this means in practical terms,” says Samuel J. Schiller, founder of Schiller Law Firm in Haskell, Okla., which has represented parents and coaches in a number of Title IX suits, “is that a school cannot simply form a team for girls, but must also support it at the same level it supports boys’ sports.” (For a list of resources that will help you to understand Title IX more fully, see Sidebar, “You’re Not Alone,” at the end of this article.)
Assessing Your Situation
Softball is now the fourth most popular sport for girls in terms of high school participation. In 1999, there were 12,679 high schools that sponsored the sport, an increase of 353 from the year before. Over 340,000 girls play high school softball. To put that number in perspective, in 1971, the year before Title IX passed, the total number of girls participating in all high school sports was 294,000.
While those numbers are a cause for celebration, the status of softball at some of those institutions belies any claims of gender equity having been achieved there. How can a coach tell if his or her particular softball team is being treated equitably?
“Frankly, the best approach is to ask if it passes the ‘smell test,’” says Schiller. “For example, simply compare the softball field with the baseball field. This is typically enough. But, in addition, a coach should look at his or her pay compared to that of the baseball coach. The other areas of concern are travel arrangements afforded to softball, particularly as compared to baseball, whether or not the uniforms are comparable, whether or not the bats and other equipment are comparable, and generally whether or not the school is funding softball at the same level as baseball.”
Organizations such as the Women’s Sports Foundation have published booklets that are designed to help you analyze a program. So has the National Women’s Law Center (NWLC). “We’re in the midst of publishing a checklist,” says Neena Chaudhry, Counsel with the NWLC. “It will help people check off items and get a sense of how their school is doing.” The checklist should be up on the NWLC’s Web site by the end of September.
A checklist was all it took to convince Ron Randolph, a parent in the Owasso, Okla., School District, that his daughter and her softball team were being shortchanged in their district. After failing to convince school district officials to correct the inequities, Randolph decided to attend a seminar about Title IX at Tulsa University. “I went down just to listen,” Randolph says. “At the seminar, they passed out these little booklets that had a checklist of potential inequities. Owasso failed every one of them.”
Speak Out
Once a coach has established that there are some areas of concern, what should be done next? “First of all, you want to bring it to the attention of the school,” says Chaudhry. “Schools are required by law to have a Title IX compliance officer. Many of them don’t. But they’re supposed to have someone who handles Title IX complaints either in the school or in the district. Bring it to that person’s attention.”
Randolph says that you don’t have to tiptoe around the issue. “Go to your athletic director publicly,” he says. “None of this closed-doors stuff; you need to do this at a coaches’ meeting, where you have witnesses, and demand these things. Don’t worry: if you start ruffling feathers, there are federal laws that say they can’t fire you. You need to be assertive and demand what is yours, because you have as much right to that money as anybody else. There are too many people who are afraid for their jobs or they’re afraid of the community outrage. I expected a lot of repercussions and got very little.”
Ray Yasser, Professor of Law at the University of Tulsa College of Law and member of Schiller’s Title IX law team, agrees that a coach should not be afraid to talk to school administrators about the problem. “You’re in a position of power because you have the force of federal law behind you,” he says. “You’re in a good position to insist upon improvements to your program. I’m not saying to threaten litigation right from the get-go, but armed with the knowledge that you have the federal law behind you, it seems to me that it’s a wonderful opportunity for a coach to build a program. You’re empowered.”
But those with experience in these matters warn that you can’t expect an instant rectification of the problem. “We were naive,” says Egan. “We thought that it was just an oversight, and once the inequities were brought to the school’s attention, they would want to address them, and slowly, over the years, we would work together and the discrimination would be gradually eliminated. But that just didn’t happen”
Drumming Up Support
If, like Egan, your first efforts at speaking to administrators fail, what should you do next? “You always have the option of getting the press involved,” says Chaudhry. “We’ve seen some do this very successfully. It puts pressure on the schools.” The embarrassment of having the problems documented in the newspaper or on television may be the push the district needs to make changes.
It may also be time to ask the parents in your program to help. “I think the more people you can get on your side, the better,” says Chaudhry. “There’s strength in numbers. It’s often a lonely fight. People who do it are very brave and should be applauded because they’re making a difference for the girls at their schools. It’s not easy to do.”
In fact, many coaches choose to hand off the baton to their athletes’ parents at this point. Although it is illegal, there is a possibility of administrative backlash against a coach who takes further steps, especially in a small community, so coaches may prefer to avoid direct involvement with formal proceedings.
“I don’t see anything wrong with the coach saying, ‘I’ve done what I can do. I haven’t gotten what I think is an adequate response,’” says Yasser. “The coach can tell the parents that there is a federal law out there that can be used in a number of different ways. We’ve had cases in which coaches have been very involved in getting the parent groups together, and as far as litigation, we’ve protected those coaches.”
A Formal Complaint
Whether you have the help of parents or not, the next step is to consider getting federal officials involved. This entails filing a complaint with the Office of Civil Rights (OCR), which is responsible for assessing such complaints. Keep in mind that, depending on the staffing situation at your local office, an OCR complaint may take a while to wind its way through the system. On the other hand, you may take the school district to court.
At this point, many parents and coaches seek the assistance of a lawyer. There may be local lawyers who can handle a Title IX suit. If not, contact one of the organizations listed in “You’re Not Alone” and ask to be referred to an attorney who is experienced in such cases. Don’t be intimidated by finances: Some lawyers are willing to take on these types of suits pro bono, which essentially means for no charge. Others may be willing to get paid as part of the settlement, and not charge their clients anything for their counsel.
Lawyers have had a high rate of success in persuading the courts to order school districts to comply with Title IX. Schiller, for example, has a perfect batting average in the softball cases that he has litigated to date. “All of our cases have been settled and signed by a federal judge,” he says.
If you retain an attorney, he or she should be able to put a case together based on the information that he or she will gather. However, any documentation you compile beforehand will help. This may include items such as photos of the baseball field and the softball field, or a checklist comparing the two programs. For example, Egan compiled a list that spanned four single-spaced pages and included such items as practice times, publicity, access to concession revenues, and admission charged to boys’ and girls’ games.
Why Do This?
Choosing to take on a system of inequity is not easy. People who have been through the process advise that you must be willing to speak up for yourself and your players and demand from the district what your program deserves. Ultimately, attorneys can provide all the legal advice needed, but they cannot do it alone. The impetus must be provided by people who have something at stake.
Has it made a difference to file a suit? “The cases that we have filed at the high school level have all had a significant impact on the softball programs,” says Schiller. “In particular, we have had a number of softball fields built and ensured that softball players receive equipment, uniforms, supplies, coaching, locker rooms, and other treatment that is equivalent to that afforded to the boys, particularly compared to baseball. In addition, some schools have instituted programs at the junior high level, or added different levels of teams at the high school level, to afford more opportunities to girls for participation.”
There’s little doubt that mounting this kind of challenge can come at some cost. Even with laws in place to protect their jobs, coaches may worry about the ramifications of such a charge. “We have been told that there’s a lot of fear from the parents and coaches involved in litigation,” Yasser says. “But our experience is that the ignorant, arrogant administrators are bullies. And when it becomes apparent that you won’t back down to a bully, they’re cowards. The people who file might start out afraid, but they end up being empowered.”
The costs of demanding equity can’t be ignored. But there’s also a cost to be paid if inequities are not challenged. “I think the decision to pursue the issue is larger than Title IX,” says Yasser. “It has to do with how you live your life. I couldn’t oversee a program where I’m denying my players opportunities that they’re entitled to.”
Egan believes that fighting for her daughter’s softball program is the right thing to do. “No matter the outcome or the price that we will have to pay, we will know that at least we tried to get change,” she says. “Our daughter and our sons will always know that it is unacceptable to treat females as second-class citizens. If we ever hope for women to receive equal pay for equal work and to be treated equally in the workplace and at home, we must stop demonstrating day in and day out to our school-age children that a certain level of discrimination is acceptable. Our boys grow up thinking it is okay not to treat women quite as well as men and our daughters are conditioned to accept what they are given and not to expect the same as the men receive.”
Sidebar - You’re Not Alone
There are a large number of resources available if you wish to do further research on Title IX, or wish to contact someone regarding a complaint. Here is a list of some of the most helpful that we have found:
National Women’s Law Center: Neena Chaudhry
www.nwlc.org
(202) 588-5180.
Office of Civil Rights
www.ed.gov/offices/OCR
Herb Dempsey, Citizen Activist (see “The Dempsey Way” below)
e-mail: dempsy@ix.netcom.com
Women’s Sports Foundation
www.womenssportsfoundation.org
Feminist Majority Foundation: “Empowering Women in Sports Project,”
www.feminist.org/research/sports2.html
Women's Educational Equity Act (WEEA) Equity Resource Center
www.edc.org/WomensEquity/resource/title9/t9faq.htm
University of Iowa: Gender Equity in Sports Project
bailiwick.lib.uiowa.edu/ge/
Schiller Law Firm: Sam Schiller and Professor Ray Yasser
www.schillerlawfirm.com
(918) 482-5942.
Sidebar - The Dempsey Way
Herb Dempsey, a father of five children (two girls and three boys) and a retired school teacher, has spent several years filing Office of Civil Rights (OCR) complaints and working with other parents who have Title IX concerns. He is a self-described “pit bull” with a mission in life: to gain equality for girls’ athletics in our public schools. Here are his procedures for filing Title IX complaints:
“I start by taking statements from coaches and players, looking at the facilities or equipment involved, making some notes and taking some pictures with imprinted dates,” Dempsey says. “If I find the situation isn’t equal, then the problem is to discover which part of equal the system is having trouble with. How does the system measure its components to define ‘equal?’ What policies and laws are out there to provide guidance?
“Then, I usually talk to school administrators. I start a file and both sides can take their positions. The rules are usually simple: my side tries to move the other side toward the goal of equal treatment for all. I do my homework as well as I can and then I ask the administrators for a plan. I want a system that can produce measurable results I can see and on a specific timeline.
“If a request to the school administrators doesn’t result in a specific commitment with a time-certain resolution, I file a dated and signed complaint with the district asking that something specific be done. I like plans that are time-specific with goals I can identify, see, and measure. It obligates the district to offer specific remedies to situations. I don’t have much faith in ‘We’re going to try to do better.’ I can’t measure that, and girls can’t usually play on fields built to those specifications.
“If all of this doesn’t result in a specific resolution schedule within a month, I withdraw the complaint. Then I immediately file a complaint with the local Office of Civil Rights (OCR) and include copies of all of the paperwork and see if OCR will move on the allegations of discrimination. At least OCR will tell you if they won’t move on or proceed with the complaint, and they will tell you why.
“Sometimes an OCR investigator will call and ask for additional information. In that case, I often withdraw the complaint, do the additional research, and re-file it. Sometimes, I suggest that parents hire an attorney and have the attorney file the OCR complaint or move the matter into federal court.”
Herb Dempsey can be reached through e-mail at dempsy@ix.netcom.com.
Sidebar - Booster Clubs and Inequity
Often, administrators’ first response to a Title IX complaint is that the school district has not furnished the baseball program with all the bells and whistles your softball program lacks. You may be told that the booster club paid for these improvements, or that the boys on the team did a lot of fund-raising. Title IX experts say that it doesn’t matter who paid for the improvements—the girls are entitled to them, also.
“It’s an emotional issue, and we addressed that in one of our very earliest cases,” says Sam Schiller, Founder of Schiller Law Firm. “What we came up with is this. If you accept what seems to us to be the obvious, that the girls are playing catch-up, then the school district has an obligation to make up those moneys. The thrust of the argument is, Title IX requires that the school district provides equal benefits to the girls, regardless of the source of the income. It absolutely doesn’t matter where the money comes from. That’s kind of a difficult sell for the community, but it is the law. And I think it’s right.”
“The law is that schools have an obligation to treat their students fairly—men and women, boys and girls,” says Neena Chaudhry, Counsel with the National Women’s Law Center. “If you get money from booster clubs, it’s still the school’s obligation to see if they can use that money equally for boys and girls. If that booster club benefit is going to make them treat boys better than the girls, the administration is responsible for making up the benefits on its own. They must find some way to equalize funding for the girls, or ask the booster club if they could support both boys and girls.
“So if parents come onto the field and start building bleachers for the boys only, it doesn’t matter that they chose to do that on their own,” continues Chaudhry. “The school is the responsible party and they cannot allow the discrimination to occur on their property.”
Asking to be allowed to raise money in the community will usually generate a better response than simply demanding the school make up the difference, suggests Ray Yasser, Professor of Law at the University of Tulsa College of Law. “If a coach wants, he or she can tell the athletic director, ‘I’m willing to work. I’m willing to have booster clubs. I’m willing to do whatever the baseball coach does and more to get my parents involved.’”