SALT LAKE CITY — A lawsuit filed by girls who want high schools to offer girls football teams will likely be resolved without a trial after both sides asked a federal judge for summary judgment.
The lawsuit alleges Granite, Jordan and Canyons school districts were in violation of Title IX and the Constitution’s equal protection clause because they offer about 280 more athletic opportunities for boys than they offer girls. The girls want a league of their own. The districts and the Utah High School Activities Association have said girls have the opportunity to play football on the teams that currently exist.
In a two-hour hearing Thursday, attorneys for both sides offered Judge Howard C. Nielson Jr. a brief history of the case and a rundown on issues, including Title lX violations, possible remedies, and equal protection violations and remedies.
The case was recently reassigned to Nielson and he said he hadn’t had time to get as familiar with the facts of the case and the legal arguments of each side, but was familiar enough to discuss the legal issues that could be resolved in the next couple of months without a trial.
After a brief history from each side, Loren Washburn, the attorney for the girls, lamented the fact that the districts conducted a survey that included none of the questions they suggested, and that the results had not been shared with them.
Assistant attorney general Rachel Terry addressed those concerns, saying they had an expert design a questionnaire that was administered to nearly 6,000 boys and girls about what sports they had an interest in playing. She said the survey questions submitted to them by Washburn were “suggestive” and concerns were expressed that the questions would “lead to bias.”
“The expert’s results will be available in about a week,” Terry said. “We weren’t prepared to give the results without the analysis of the data.”
Washburn said they submitted declarations from 330 girls saying they had an interest in participating in girls tackle football because they felt “the students needed to have some voice.”
The most extensive arguments were about whether there was a Title IX violation and whose burden it was to prove that, as well as how to assess whether there is enough “ability and interest” among girls to sustain participation or a separate league.
The Utah High School Activities Association’s attorney, Mark Van Wagoner, argued that there was no denial of equal protection, and there has been no evidence of that provided in any filing or hearing.
“Girls have equal access to participation,” Van Wagoner said. “There has to be discrimination. That discrimination has to have impact. There has never been a girl denied the opportunity to participate in high school football.”
Washburn disagreed, saying Van Wagoner was “trying to conflate merely an opportunity to be on the team with equal treatment on that team.”
Two young women testified in depositions that when they participated at Hillcrest High School, they were required to practice only against each other in drills.
“That’s disparate treatment,” Washburn said. “They were not being provided the same opportunities.”
Furthermore, while the association maintains that football is a co-ed sport, Washburn said it was created as a boys sport and has functioned as a boys sport throughout its existence.
“There was discriminatory intent,” Washburn said. “That has persisted, as far as I can tell, until we filed this lawsuit.”
He said the attitude of the association and its member schools is one of allowing girls to play on boys teams until they build enough interest to have teams that were girls only, similar to what has occured in wrestling. Girls wrestling is likely to be sanctioned next season after years of girls wrestling on boys teams.
“There was a gender classification that calls this a boys team that girls are allowed to play on,” Washburn said.
Nielson seemed to struggle with a remedy that asked him to direct either the schools or the association to create a girls league. Both sides said they couldn’t find a case where a team or league had been created by a judge’s order or the result of a lawsuit. The closest situation was a case where a judge ordered the reinstatement of a team that had been discontinued and the addition of softball at Louisiana State University after the school created a plan to add the sport and failed to execute it, even though other Southeastern Conference teams had done so.
If the judge decides the only remedy is to force high schools to offer girls football teams, the association and districts say they will also have to create all of the usual infrastructure for competition, including leagues and a state tournament.
Nielsen will not rule until after the survey results are revealed in about a week.