Class action lawsuit aims to end discrimination based on sex, stop illegal retaliation by school



Read the 12/6/18 complaint: TitleIX filing



Honolulu: Two female student-athletes attending James Campbell High School (“Campbell”) filed a class action lawsuit in federal court against the Hawaiʻi State Department of Education (“DOE”) and the Oahu Interscholastic Association (“OIA”). The lawsuit is brought under Title IX, also known as the Patsy T. Mink Equal Opportunity in Education Act, a federal law that requires gender equity in education, including in athletics.



The plaintiffs are represented by the ACLU of Hawaiʻi, Legal Aid At Work, and Simpson Thacher & Bartlett LLP. In the complaint filed today in the U.S. District Court for the District of Hawai‘i, plaintiffs allege that the DOE and the OIA have discriminated against female athletes on the basis of sex in violation of Title IX.



One of the plaintiffs said: “I feel like I am left out and constantly having to fight for my equity and work five times harder for the opportunities and successes that I want as an athlete. It feels like we don’t matter as much, and that the DOE only wants to fix things when it gets bad or when someone complains because they’re caught in a mess, not because they care.”



The other plaintiff added: “I know so many girls that are passionate and good at what they do but they always get pushed aside. There’s also many girls that want to participate in more sports but they decide not to because the school offers us no support. The boys always get better opportunities, and it’s not fair. I’m worried for my little sister, who just started school at Campbell, and I don’t want her or any other girls to go through we’ve had to. It’s time for a change, that should’ve happened a long time ago.”



Title IX requires equal treatment and benefits in athletic programs – things like locker rooms, practice facilities, and competitive facilities; equipment and supplies; scheduling of games and practice times; availability and quality coaching; travel opportunities; medical and training services and facilities; participation opportunities, and publicity and promotion. The lawsuit describes multiple violations, including:

Male athletes at Campbell have a standalone athletic locker room facility located near the athletic fields, while female athletes have no facility and have to change clothes in teachers’ closets, in a fast food restaurant bathroom, and even on the practice field.

During the 2017-18 school year, the DOE failed to secure a pool for the Campbell girls’ water polo team practice until after the season had begun, forcing the female athletes to hold dry-land and open-ocean swim practices – poor substitutes that do not adequately prepare the athletes for pool competition.

The DOE and the OIA book prime competitive facilities – such as Aloha Stadium – exclusively for boys’ sports programs.

Games and tournaments are scheduled by the DOE and the OIA to give prime Friday evening athletic competition slots to boys’ sports programs, while girls’ sports programs are held on off days such as Tuesdays and Thursdays, which have less exposure and community attendance and force the girls to compete on school nights, putting their academic work at a disadvantage.

The DOE and the OIA are diverting coaching funds intended for girls’ sports programs in order to hire more coaches for boys’ sports programs and to increase the pay of the boys’ coaches.

Travel off the island of O‘ahu for practice, competition, and athletic enrichment is disproportionately reserved for boys’ sports – most notably the football program.

Boys’ sports are promoted and advertised far more than girls’ sports. Even Campbell’s website includes many photo albums of boys’ sports programs but not a single album for girls’ sports programs.

Title IX also requires that girls have a fair share of the athletic participation opportunities and the lawsuit alleges Campbell girls are discriminated against in this area as well. Girls are lacking approximately one hundred athletic opportunities at the school. Under the law, the percentage of girls represented in the student body should mirror the percentage of girls represented in the athletic program—currently, there are not enough teams on which girls can play, leaving female students stuck on the sidelines, missing out on vital opportunities to enjoy and learn from sports experiences.

ACLU of Hawai‘i Executive Director Joshua Wisch said, “Litigation is always our last resort. But unfortunately, nearly half a century after Title IX was passed and after almost 10 months of trying to work with the DOE, it still failed to produce a substantive plan to comply with the law. And unfortunately, some schools have doubled down on violating Title IX. As noted in our complaint, after the plaintiffs complained formally to Campbell’s administrators, the school retaliated by threatening to ‘cancel’ the girls’ water polo program and even withheld funding and other support from it. This is unacceptable.”



The plaintiffs ask the court:

To declare that the DOE and the OIA have illegally discriminated and retaliated against female student-athletes in violation of Title IX;

To require the DOE and the OIA to comply with Title IX; and

To oversee the DOE and the OIA until they fix the violations, ensuring gender equity in programming in the short- and long-term.

The plaintiffs seek no money for themselves. In making this a class action lawsuit, they want changes to the system for the benefit of themselves, present and future female athletes.



Legal Aid At Work Senior Attorney Elizabeth Kristen said: “Female students deserve a level playing field. Girls who play sports in high school go on to make higher wages as adults compared to their non-athlete peers so achieving the promise of Title IX helps girls thrive in today’s workplace and world.”



Simpson Thacher & Bartlett Counsel Jayma Meyer said: “Playing sports results in many benefits, including positive self-esteem and confidence, better education and employment opportunities, improved emotional and physical health, and valuable life-lessons such as teamwork and resilience. We must stop short-changing girls. Girls are entitled to the same opportunities and treatment in sports as the boys and accordingly to all the benefits that result from playing sports.”



Hawai‘i has a special connection to “Title IX”, passed June 23, 1972, which created life-changing opportunities for all students, especially girls, to pursue their dreams in education and sports. Hawaii’s own Patsy Takemoto Mink was the principal author and driving force behind the legislation. Mink worked tirelessly for education reform during her political career and overcame gender and racial discrimination to become the first woman from Hawai‘i elected to Congress. She also has the distinction of being the first woman of color and the first Asian American woman elected to Congress.



The ACLU of Hawaiʻi has challenged the DOE over Title IX before. In 2010, the ACLU of Hawai‘i won a lawsuit against the DOE over gender inequities in the girls’ softball program at Maui’s Baldwin High School.

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ACLU OF HAWAI‘I (www.acluhawaii.org) has worked since 1965 to ensure that the government does not violate fundamental constitutional rights including, but not limited to, freedom of speech, association and assembly, freedom of the press, freedom of religion, fair and equal treatment, and privacy. If the rights of society’s most vulnerable members are denied, everyone’s rights are imperiled.



LEGAL AID AT WORK (https://legalaidatwork.org/), founded in 1916, is committed to protecting the rights and economic selfsufficiency of low-income workers and their families. LAAW’s Fair Play for Girls in Sports project spurs schools and parks and recreation departments to treat girls equally on and off the field. Focusing particularly on girls of color and girls who live in low-income communities, this work promotes the health, educational achievement, and future employment opportunities of girls in grades K-12.



SIMPSON THACHER & BARTLETT LLP (www.simpsonthacher.com) is one of the world’s leading international law firms. The Firm was established in 1884 and has more than 900 lawyers. Headquartered in New York with offices in Beijing, Hong Kong, Houston, London, Los Angeles, Palo Alto, São Paulo, Tokyo and Washington, D.C., the Firm provides coordinated legal advice and transactional capability to clients around the globe. Simpson Thacher has an abiding commitment to public service and devotes tens of thousands of hours each year to pro bono projects.