While a group of female athletes from Campbell High School has prevailed in the latest round of a long legal battle over allegations of gender discrimination at the school, the case is far from over, and their attorneys contend that systemic inequities and their ripple effects in Hawaii and nationwide are broader than many people realize.
A three-judge panel on the 9th Circuit Court of Appeals ruled on April 4 in favor of four Campbell female student athletes seeking class-action status for a 2018 lawsuit alleging they were not given the same facilities, treatment, opportunities and benefits as male athletes at the school.
Even though three of the four girls have graduated, they will continue to pursue the suit and seek to make it a class action on behalf of the hundreds of present female athletes and countless future ones at the school, said Elizabeth Kristen, director of the Gender Equity &LGBTQ Rights Program and senior staff attorney at Legal Aid at Work in San Francisco, who is part of the girls’ legal team.
“Girls who take on these types of Title IX cases have to understand they’re taking it on for the next generation of girls — their sisters, their cousins, their community members. This change takes time,” Kristen told the Honolulu Star-Advertiser.
Title IX of the Civil Rights Act reads: “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.”
Among the areas in which it mandates gender equity are sports programs run by federally funded high schools.
In 2002 the law was formally renamed the Patsy Mink Equal Opportunity in Education Act for the late Hawaii congresswoman who was its main author and champion, but it is still often referred to as Title IX.
The state Department of Education and the state Department of the Attorney General declined to comment, citing the pending litigation. Messages left with the Oahu Interscholastic Association, the other defendant in the suit, were not returned.
The four girls in their lawsuit against the DOE and OIA said they and other female students at Campbell have experienced “grossly unequal treatment, benefits, and opportunities in relation to male athletes.”
For example, the suit said, while the male athletes at Campbell have a stand-alone locker room with 120 full-size lockers, showers, at least four bathroom stalls, air conditioning and an office, female athletes at the Ewa Beach school do not have any such facility.
The lawsuit said female athletes “must carry their athletic gear around with them all day and have resorted to changing in teachers’ closets, in the bathroom of the nearest Burger King, and even on the practice field, potentially in full view of bystanders. To use the bathroom, female athletes must run back to the main campus, use decrepit porta-potties (which are sometimes locked), or face crouching down in the bushes.”
Female water polo players sometimes have had to change clothes on the bus, and some girls on the cross country and softball teams have changed in the bleachers while their teammates held up jackets for privacy, the suit said.
The girls also allege that female athletes at Campbell have inferior practice and game facilities, a shortage of coaches, unequal access to athletic trainers, less publicity and promotion for their teams, and fewer athletic offerings.
Additionally, the lawsuit claims school administrators retaliated against the female athletes by threatening to cancel the girls water polo program, their season, or both, after they raised concerns about lacking adequate access to a pool to practice.
In the 2017-18 school year, the DOE did not secure a pool for the girls water polo program until after the season started, the suit said. The team “was left with no choice but to hold dry-land training sessions and open-ocean swim practices at Puuloa Beach Park,” the suit said.
Other problems indicating inequity include an absence of a practice facility for the girls cheerleading team and facilities for the girls softball team that are inferior to those for the boys baseball team, the suit said.
The lawsuit seeks declarative and injunctive relief — a court declaration of violations and changes in the facilities and support for Campbell’s female athletes. Kristen said she would like to see a court-monitored joint compliance plan.
The ruling by the appeals panel reversed a 2019 decision by Honolulu U.S. District Judge Leslie Kobayashi that said the lawsuit failed to meet certain technical requirements to become a class action. The panel said when girls seek equity under Title IX, allegations of systemic discrimination favor class actions. The panel also said the girls’ claim for classwide retaliation could proceed because of the chilling effect of retaliatory actions.
As a next step, Kobayashi has ordered the parties to meet and confer on the technical requirements, Kristen said.
The panel’s ruling was important, she said, because it “recognized the systemic nature of Title IX athletics violations here.”
There are also systemic inequities in the overall public school system here, said Jongwook “Wookie” Kim, legal director at ACLU of Hawai‘i, which is also part of the legal team representing the Campbell female athletes. For instance, he said, about 10 out of 55 Hawaii public high schools lacked locker rooms for girls but had them for boys, at last check about 2-1/2 years ago, the last time the DOE provided the group with information on athletics programs.
That’s just the “tip of the iceberg,” Kim contends. Further investigation at each school is needed to discern whether there are disparities in less tangible matters such as training opportunities and coaches’ salaries, “but clearly the situation at Campbell High School is representative of the situation at many other high schools,” he said.
One reason it’s hard to gauge exactly how well Hawaii public schools are complying with anti-discrimination laws is that while public colleges are required to submit equity metrics to the Office of Civil Rights, there is no such requirement for high schools, said Jayma Meyer, an attorney with Simpson Thacher &Bartlett LLP, an international law firm headquartered in New York City that is doing pro bono work on behalf of the Campbell female athletes.
Students who notice gender inequities in their own schools’ offerings should talk to coaches, teachers and administrators, and get their parents involved, and if no solution is reached, options include a lawsuit or a complaint to the federal Office of Civil Rights, Meyer said.
“It’s an epidemic around the country. No state is doing very well,” Kristen added.
Kristen noted the Patsy Mink Equal Opportunity in Education Act marks its 50th anniversary this year.
“It’s been really frustrating and disappointing to see that in Patsy Mink’s home state, we don’t have the gold standard of compliance with Title IX,” she said.
Gender discrimination in athletics anywhere has long-term ramifications, she added, citing a study that indicates girls who play sports in high school earn 7% more as adults.
“There are 3 million girls playing sports at the high school. … Sports participation for girls isn’t just about going on to the Olympics — it’s about going to college, it’s about getting a job, it’s about getting higher wages. It really sets this platform for character development for the rest of their lives,” Kristen said. “So girls who are deprived of this in high school, it’s really robbing them of so much in their futures.”
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