CHICAGO (CN) – An Indiana high school may have violated Title IX by scheduling prime-time varsity boys basketball games substantially more often than girls varsity games, the 7th Circuit ruled.
The opinion, released on the eve of National Girls and Women in Sports Day, was penned by Regan-nominee Judge John Tinder.
“A packed gymnasium, cheerleaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song: these are all things you might expect to see at an Indiana high school basketball game on a Friday night,” the 37-page opinion began.
“The crowd becomes part of the game; they provide motivation, support, and encouragement to the players. After all, what would a spectator sport be without the spectators? Unfortunately, this is a question the Franklin County High School girls’ basketball teams must answer every season because half their games have been regulated to non-primetime nights … to give preference to the boys’ Friday and Saturday night games.”
Former Franklin basketball coach Amber Parker brought the suit on behalf of her 16-year-old daughter, naming 14 Indiana public schools as defendants. Tammy Hurley, whose daughter is a current Franklin girls basketball player, was added to the case as a second plaintiff after the Parker family moved out of the state.
The complaint alleged Equal Protection and Title IX violations, primarily targeting Franklin County High School. Parker claimed that the school’s scheduling practices “result in a loss of audience, conflict with homework, and foster feelings of inferiority.” The other defendants included six schools in the Eastern Indiana Athletic Conference and seven nonconference schools that allegedly would not modify standing game-play contracts to increase the number of girls games in “prime time,” a Friday or Saturday night.
Between 2007 and 2009, the boys varsity basketball team played 95 percent of their games during prime time, compared to the 47 percent played by the girls team. That gap narrowed slightly during the 2009-10 season, but remained substantial – 95 percent to 53 percent.
U.S. District Judge William T. Lawrence had granted summary judgment to the school districts in Indianapolis last October, finding that the scheduling disparity was not substantial enough to be actionable under Title IX. Lawrence also ruled that the 11th Amendment protected the school districts from the Equal Protection claims.
But the 7th Circuit reversed last week, finding that Franklin failed to act despite substantial notice that its scheduling policies violated the statute. In 1997, the school received a letter from the Department of Education’s Office for Civil Rights, warning that it to re-evaluate prime-time scheduling discrepancies and proffer a nondiscriminatory explanation for the difference in prime-time allocation.
“The letter from the OCR was distributed to Franklin fourteen years ago; yet, the disparity in scheduling continues,” Tinder wrote.
“This disparate scheduling creates a cyclical effect that stifles community support, prevents the development of a fan base, and discourages females from participating in a traditionally male-dominated sport,” he added. “Further, some girls who would like to try out for the team may be dissuaded by the number of nonprimetime games that conflict with their academic studies.”
The court also declined to dismiss the other schools outside the county, finding that they are necessary parties to the case because their joint agreement is required to set the playing schedules.
These schools cannot be liable for monetary damages, however, because “their argument focuses on the harm suffered as a result of Franklin’s overall disparate scheduling practices.”
Reinstating the plaintiffs’ equal-protection claims, Tinder said that “school corporations are political subdivisions with locally elected school board members and superintendents; as such, they are local government units.” Because the schools are organized into local districts, rather than as a single public education agency, they are not “arms of the state” and may be sued, the 37-page decision states.
The ruling did not seem to come as a shock. “We know there’s a disparity,” Tom Wheeler, attorney for the school districts, told local news outlets, “We said to the court, while there is a disparity, it does not impact their athletic opportunities. We’re [also] resolving [the disparity].”
The case was remanded for a jury trial. Even if the school districts choose not to appeal, it could take up to 18 months to seat a jury and begin trying the case.