NEBRASKA COACHES ASSOCIATION MULTI-SPORTS CLINIC – LINCOLN – JULY 2021

CURRENT LEGAL ISSUES IN ATHLETICS ADMINISTRATION

PRESENTER: LEE E. GREEN, J.D. PROFESSOR EMERITUS BAKER UNIVERSITY

TOPICS COVERED IN HANDOUT

COVID-19 Sports Law Litigation. Constitutional Law: Student-Athlete Freedom of Speech. Constitutional Law: Social Media. Constitutional Law: Due Process & Being Cut from Teams. Constitutional Law: Due Process & Vaping. Constitutional Law: Freedom of Religion & Prayer. Constitutional Law: Equal Protection & Gender Discrimination. Constitutional Law: Equal Protection & Discrimination Based On Race-Ethnicity-Religion. Constitutional Law: Equal Protection & Participation Rights Of Transgender Athletes. Constitutional Law: Privacy Issues. Constitutional Law: Defamation Suits Against Parents. Liability for Sports Injuries. Liability for Concussions. Hazing Prevention Legal Standards. Sexual Harassment in Athletic Programs. Title IX & New OCR Sexual Assault/Harassment Regulations. Title IX & Sports Program Inequities for Girls’ Athletics Teams. Sports Officials: Legal Protections Against Assault. Fair Labor Standards Act Regulations Impacting School Sports. Nebraska-specific information such as the state hazing law, the state concussion protocol statute, the state child abuse reporting law, and the state activities association’s equity and inclusion policy addressing the participation of transgender students in school athletics programs, are included below in the appropriate section.

Legal Issues in Athletics Administration Over the course of the calendar year 2020, a new category of legal disputes arose never- before encountered by school and athletics administrators: COVID-19 related lawsuits. In addition, litigation was filed, court cases were decided, legislation was enacted, administrative agency rulings were released, state athletic association decisions were issued, and other legal pronouncements were handed down regarding the wide range of issues traditionally impacting school sports programs. In each instance, whether related to COVID-19 or traditional interscholastic sports law issues, the principles established illustrate the importance for school administrators and athletics personnel of understanding contemporary legal issues and proactively applying that knowledge to policy development and day-to-day management of their athletics programs and sports personnel, including coaches, trainers, and event supervisors. COVID-19-Related Sport Law Cases Beginning in mid-March of 2020, example after example emerged across the country of school and athletics administrators relying on the recommendations of national, state, and local public health authorities to make decisions clearly intended to be in the best interests of the health, safety, and well-being of students and student-athletes regarding academic scheduling and sports seasons only to find those decisions challenged by a small-yet-vocal minority of parents or community members. In general, the objectors disagreed with alterations to class scheduling or postponement of athletics seasons with their dissenting views based not on the opinions of scientific or medical experts, but solely on the fact that other schools in neighboring communities, counties, or states had adopted different strategies. In many of those situations, in a reflection of the nature of our litigious society – even in the middle of a pandemic that has resulted in over twelve million Americans being infected with COVID-19 and more than a quarter-million losing their lives to the coronavirus – lawsuits were filed by objectors attempting to prioritize sports over the public health crisis. One such typical case was Mermigis v. New York Governor Andrew Cuomo, the New York Public High School Athletic Association, and Niagara Falls High School, et al (including numerous individually- named state association, section, and school athletic administrators across the state). The September filing in New York State Court by the father of a Niagara Falls High School football player was a class-action suit seeking a temporary restraining order (TRO) to overrule the decision of the NYPHSAA and its eleven geographic sections to move football season from the fall of 2020 to the spring of 2021. On October 30, a New York Supreme Court judge ruled against granting the injunction that would have directed high school football to resume in the fall. In his ruling, the judge noted that a TRO requires that the plaintiff demonstrate that the affected persons (high school football players across New York) would  suffer irreparable harm and  have a substantial likelihood of success on the merits if a full trial was to be held later. The judge cited the spring football season as a viable option that nullified any claim of irreparable harm, along with the fact that participation in high school sports is a privilege, not a constitutionally-protected right. He also relied upon affidavits from the New York State Department of Health regarding the high-risk status of football with relation to the coronavirus, stating that the delay of the season to the spring “[is] a wise policy … the court owes a great deference to the protective measures ordered by [the state association, its sections, and the member schools] in response to the COVID-19 crisis.” Similar rulings were issued in the two court cases Let Us Play Coalition v. Illinois Governor J.B. Pritzker & the Illinois High School Association and Doe v. Minnesota State High School League, in both of which the plaintiffs sought injunctions following the postponement of football and volleyball to the spring, with judges deferring to medical and scientific experts over the objections of those who disagreed with deferral of the sports seasons for a few months. In the MSHSL case, the state association’s Sports Medicine Advisory committee – relying on an evolving analysis by state public health authorities – later revised its recommendations regarding the two sports and the MSHSL reinstated the fall seasons of the two sports, emphasizing that the health and well-being of student-athletes as determined by medical and scientific advice took precedence over all other criteria with regard to the scheduling of sports seasons. In early September, in Hepler et al v. Shawnee Mission School District & Blue Valley School District, a state court judge deferred to local health experts in denying a TRO that would have allowed the immediate resumption of girls’ golf at the ten high schools in the two districts, the sport having been put on hold based on the analysis of Johnson County (KS) public health authorities. Later in the month, when the county health department revisited the scientific data on the spread of the coronavirus in the area and modified its recommendations, the districts allowed resumption and ultimately completion of the girls’ golf season, again emphasizing that medical and scientific advice took priority over sports-focused objections by parents about the scheduling of golf seasons in neighboring districts, counties, and states. Another category of COVID-19-related lawsuits are those in which parents or other constituents have challenged limits on crowd sizes at sports events. On October 1, 2020, in County of Butler v. Wolf, the U.S. Third Circuit Court of Appeals upheld as constitutional crowd size restrictions imposed by Pennsylvania Governor Tom Wolf that were based on recommendations by public health authorities and that limited indoor gatherings to 25 and outdoor to 250, restrictions that were vehemently objected to by parents of high school student- athletes whose dissents were based on comparisons to crowd limits in neighboring states. On October 5, 2020, in J.W. et al v. Minnesota State High School League, the families of football and volleyball players at four high schools filed suit challenging limits on fans that the plaintiffs claimed were intended to deprive parents of the right to support their children playing high school sports. The state association’s restrictions on crowd sizes were based on medical recommendations from the Minnesota Department of Health and after science-based updates to advice proffered by public health authorities, on October 9, the MSHSL revised its guidelines for indoor sports and the lawsuit was withdrawn. And in September 2020, in a lawsuit filing that garnered national media attention because of the frustrations over the years of school districts and administrators nationwide who in the midst of attempting to provide exemplary educational and extracurricular programs to America’s young people are regularly forced to endure the filing of frivolous suits regarding every detail of those efforts, a district actually became the plaintiff in a crowd-size case – Blue Springs School District v. Jackson County, Missouri – when based on recommendations by the county health department, high school football crowds were limited to 100 persons. The district objected, citing not scientific data regarding health and safety, but rather the larger crowd sizes permitted at high school games in neighboring counties and states and the greater number of fans permitted in some professional football venues. In late September, a state court judge denied the district’s request for a TRO, and in early October, after public health authorities – based on evolving medical evidence – amended its COVID-19 protocols to allow larger crowds, the district dropped the lawsuit. An ongoing concern for school districts nationwide is the liability question as to whether insurance coverage for high school sports would cover claims that a student-athlete contracted COVID-19 because of an athletic program’s negligence in following communicable disease protocols related to the coronavirus. The key to this issue is whether the policy in question, as many now do, includes specific language excluding coverage for COVID-19. For instance, one major insurance pool, the All Lines Interlocal Cooperative Aggregate Pool (ALICAP), backed by Lloyd’s of London, provides coverage for a majority of school districts in many Midwestern states (e.g. more than 170 Nebraska districts subscribe to ALICAP-Lloyd’s) and the carriers have added a written exclusion to all policies expressly stating that COVID-19 claims are not covered and districts would be on their own in paying a huge court award if a student-athlete became seriously ill or died because of the coronavirus. Most insurance pools across the country have added language clarifying that COVID-19 is not covered and it is incumbent on district personnel to carefully evaluate their policies’ exclusions regarding the issue. A COVID-19 issue that may be encountered by many districts and schools in 2021 is the question regarding whether an athletic program would have the right to mandate that student- athletes, as a condition of participation, receive a vaccination against the coronavirus. Given the concerns that have already arisen that the anti-vaxxer movement may have a significant impact on the effectiveness of a COVID-19 vaccine in halting community spread of the disease, legal challenges are likely to occur if school sports programs were to insist that players must be inoculated in order to protect not just themselves, but their teammates, coaches, and school communities. Judicial precedents regarding the issue are rare, but the following recent case provides a glimpse into how courts might rule in such a case. In July 2019, in Kunkel v. Northern Kentucky Health Department (NKHD), the Kentucky Court of Appeals upheld the decision in April by a Boone County trial court that refused to grant a temporary restraining order to restore the eligibility of a basketball player who was held out of school and sports events beginning in mid-March of 2019 for refusing to submit to a chickenpox vaccination in the midst of an outbreak of 32 cases at his school, Our Lady of the Sacred Heart and Assumption Academy. The trial court concluded that the control measures taken by the NKHD banning all unvaccinated students from attending school and participating in extracurricular activities were “reasonable, appropriate, and necessary to control the spread of a highly infectious disease.” In refusing to be vaccinated, Jerome Kunkel invoked the religious exemption available to him under Kentucky state law, an exemption that according to the Centers for Disease Control (CDC) is available in 45 states and D.C. Five states – New York, California, Maine, West Virginia, and Mississippi – allow citizens to opt-out of school-mandated vaccinations only if the individual has a health condition that makes it unsafe to be vaccinated. Kunkel’s parents attributed their refusal to have Jerome vaccinated to their Catholic religious beliefs because the Varicella vaccine was derived from the cell lines of two fetuses that were electively aborted during the 1960s (a true statement). However, according to the National Catholic Bioethics Center, the church’s 2005 ruling in its Pontifical Academy for Life statement holds that Catholics are morally permitted to use such vaccines when there’s a threat to public health – “one is morally free to use the vaccine, despite its historical association with abortion, if there is a proportionately serious reason for doing so … this is especially important for parents, who have a moral obligation to protect the life and health of their children and those around them.” (www.ncbcenter.org/resources/frequently-asked-questions/use-vaccines). In ruling for the NKHD, the Court of Appeals rejected Kunkel’s argument that the religious exemption should not only have protected him against having to take the vaccination shot (which it did), but also should have barred the NKHD from holding unvaccinated students out of school, sports, and extracurriculars, and that because of the dispute, he didn’t get to play in a basketball all-star game and benefit from exposure to college scouts. In rejecting Kunkel’s arguments, the Court of Appeals stated that “[O]f paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The trial court also cited legal precedent from a 2015 decision by the U.S. Second Circuit Court of Appeals in Phillips v. City of New York allowing attendance restrictions for unvaccinated, non-immune students during an outbreak of Varicella in a school, a case that itself relied on a 1905 U.S. Supreme Court decision, Jacobsen v. Massachusetts, involving a person who refused to get vaccinated against smallpox. Constitutional Law: Freedom of Speech & Social Media In July 2020, the U.S. Court of Appeals for the Third Circuit upheld a U.S. District Court decision from March 2019, in Levy (B.L.) v. Mahanoy Area School District, granting summary judgment to a cheerleader (B.L.) dismissed from the squad for inappropriate postings on social media allegedly in violation of the student-athlete code of conduct at Mahanoy Area High School (PA), concluding that her communications were constitutionally protected by the Free Speech Clause of the First Amendment, and making permanent the temporary injunction restoring her to the cheer team that had been issued in October 2017 by the same lower federal court. In May 2017, off-campus and using her privately-owned phone, B.L. took a photo of herself and a friend holding up their middle fingers and posted it on the social media platform Snapchat with the caption “f*** school, f*** softball, f*** cheer, f*** everything.” A few days thereafter, the cheer sponsor informed B.L. that she was being dismissed from the squad because the profane posting violated the student-athlete code of conduct because it was “disrespectful to the coaches, the school, and the other cheerleaders.” The U.S. District Court’s 2019 decision that the cheerleader’s free speech rights had been violated was based on the precedents established in the U.S. Supreme Court’s rulings in Tinker v. Des Moines ISD – a substantial disruption had not occurred as a result of the Snapchat posting – and Bethel School District v. Frasier, through which the high court limited the authority of schools over students for the use of profane language to that which occurs on campus. On January 8, 2021, the U.S. Supreme Court granted certiorari and agreed to hear an appeal of the Levy (B.L.) v. Mahanoy Area School District decision in order to address the question of school authority over off-campus, inappropriate postings by students or student- athletes on social media. The oral arguments in the case were held before the high court on April 28, 2021 (the audio of those oral arguments are available online at www.oyez.org) and on June 23, 2021, the high court ruled 8-1 (with Justice Thomas dissenting) in favor of the cheerleader, concluding that her First Amendment right of free speech had been violated. The following is the holding from the Court’s written opinion and it sets forth the basic parameters of the legal standard regarding student free speech rights on social media with which school and athletics administrators need to be familiar: ______Levy (B.L.) v. Mahanoy Area School District Held: While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B.L.’s interest in free expression in this case. (a) In Tinker, we indicated that schools have a special interest in regulating on-campus student speech that “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices. (b) But three features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. (c) The school violated B.L.’s First Amendment rights when it suspended her from the junior varsity cheerleading squad. (1) B.L.’s posts are entitled to First Amendment protection. The statements made in B.L.’s Snapchats reflect criticism of the rules of a community of which B. L. forms a part. And B.L.’s message did not involve features that would place it outside the First Amendment’s ordinary protection. (2) The circumstances of B.L.’s speech diminish the school’s interest in regulation. B.L.’s posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snap-chat friends. (3) The school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community is weakened considerably by the fact that B. L. spoke outside the school on her own time. B.L. spoke under circumstances where the school did not stand in loco parentis. And the vulgarity in B.L.’s posts encompassed a message of criticism. In addition, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. (4) The school’s interest in preventing disruption is not supported by the record, which shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about the content of B.L.’s Snapchats. This alone does not satisfy Tinker’s demanding standards. (5) Likewise, there is little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad. ______

Constitutional Law: Freedom of Speech & Protests In Gonzales v. Cassia County School District, a lawsuit filed in U.S. District Court in Idaho in September 2017, following a dispute in which nine Burley High School cheerleaders were permanently dismissed from the squad for participating in a sit-in protest as part of a group of 14 cheerleaders who were objecting to what the larger group considered to be abusive treatment by the school’s cheer sponsor in excess of the typical and permissible motivational strategies often used by coaches. The 14 protested by attending an early-morning practice in the school’s gym and sitting in the bleachers wearing their school clothes. When asked by the school’s AD and an Assistant Principal to leave the gym, the 14 refused, arguing that they had a right to peacefully protest. All 14 were initially suspended from the team and were given a list of reinstatement conditions; all signed an agreement stating they would abide by those conditions, but the nine who were eventually expelled from the squad added a statement reserving the right to file an appeal using the Cassia County School District’s formal grievance process. The nine filed a federal lawsuit alleging that their First Amendment right of free speech had been violated by the initial suspension and that their permanent expulsion for claiming a right of access to the district’s grievance process constituted illegal retaliation. Relying on the U.S. Supreme Court’s rulings in Tinker v. Des Moines School District and Bethel School District v. Fraser that schools may regulate student expression only if the speech “materially and substantially disrupts the work and discipline of the school” or is “on-campus vulgar or lewd speech,” and deciding that the Burley High School sit-in, although controversial and in conflict with the viewpoint of school administrators, did not cause a substantial disruption nor involve indecent, on-campus speech, the court ruled that the cheerleaders’ First Amendment free speech rights had been violated by punishing them for what had essentially been a peaceful protest. The court declined to rule on the retaliation issue, reserving that claim for a future trial on the merits.

The standard of practice illustrated by the case is that schools must proceed cautiously when considering sanctions against students for any form of speech or expression related to protests conducted by students. The level of disruption required to satisfy the Tinker standard is high and is unrelated to how intensely school officials may themselves disagree with the viewpoint of the students. In recent years, courts have overturned the punishment of students for participating in gun-control-related speech tied to protests over school shootings, for participating in protests regarding social justice issues, and for participating in protests related to a wide variety of school policies. Only if a school is confident that it has amassed enough clear- cut evidence to clear the very high bar for “substantial” disruption under Tinker should sanctions be levied against a student. Unfortunately, courts have not defined with precision the dividing line between a low or medium level of disruption and the high level required by Tinker, therefore schools need to be aware of the risk they are taking for punishing students for speech-related actions. Constitutional Law: Freedom of Religion & Prayer In November 2019, the U.S. 11th Circuit Court of Appeals, in Cambridge Christian School v. Florida High School Athletic Association, overturned a November 2017 dismissal of the lawsuit in a dispute involving pre-game prayer over a sports venue’s public address system. In December of 2015, before the Class 2A state football championship game at Camping World Stadium (formerly the Citrus Bowl) in Orlando, CCS was denied the use of the loudspeaker system to conduct a pre-game prayer because, according to the FHSAA, the facility is a public- owned, public-operated, funded-by-public-tax-dollars entity and the association itself is a public, quasi-governmental entity, therefore the First Amendment’s Establishment Clause – which prohibits government sponsorship of religious activity – barred the use of the public address system. “The lower court was too quick to pull the trigger insofar as it dismissed [CCS’s] free speech and free exercise of religion claims,” stated the appellate court in its written opinion. “We cannot say whether these claims will ultimately succeed, but [CCS] has plausibly alleged enough to enter the courtroom and be heard.” A full trial on the merits will likely be held sometime in 2021. The FHSAA decision was based on the U.S. Supreme Court’s ruling in Santa Fe ISD v. Doe (2000), a case in which the Court held that prayer at sports events sponsored by “state actors” violates the Establishment Clause. However, the facts underlying the CCS dispute are slightly different from the Santa Fe ISD case, which involved athletic contests between public high schools – private schools are not restricted by the Establishment Clause – and the CCS dispute involves a private school playing in a public facility, albeit in a contest sponsored by a state actor (the FHSAA). It is relevant to note that in the Santa Fe ISD case, in addition to its primary ruling, the Supreme Court made it clear that the Establishment Clause does not limit the ability of students, fans, or student-athletes to pray anytime they choose before, during, or after a sports event and that the First Amendment bars only government sponsorship of that prayer by state actors such as public schools or public school employees. Therefore, spontaneous prayers initiated by players-only in a locker room or on a field are permissible and group prayers organized by private school officials for the private school community are also permissible. Such was the result at the 2015 Florida 2A state championship game – before CCS played University Christian, another private school, the teams gathered a midfield for a prayer, and after the game, players, coaches, and fans from both schools congregated on the field for a community prayer. The FHSAA’s denial of the use of the public address system did not ultimately inhibit the ability those individuals to pray. University Christian won the game 61-16. In March 2020, a U.S. District Court granted a Washington school district’s motion for summary judgment in suit filed to request that the court respond to some issues raised by the U.S. Supreme Court in its January 2019 refusal to grant a writ of certiorari in Kennedy v. Bremerton School District, thereby declining to hear an appeal of the October 2017 decision by the U.S. Court of Appeals for the Ninth Circuit that a Washington school district was not required to allow a high school football coach to pray on the field at the end of each game, an activity that often involved players, coaches, and other students. The March 2020 ruling brings to a definitive close the five-year saga involving the coach’s arguments that despite his status as a public school employee (a representative of the government), he nevertheless should be permitted to engage in prayer at school athletics events in a manner that promotes religion or a particular denomination thereof. The Supreme Court’s denial of the coach’s request to review the Ninth Circuit’s ruling was not unexpected – in recent years the Court has granted “cert” less than 100 times per term out of 7,000 to 8,000 requests – but the format of the denial of cert was unusual. Typically, refusal to hear an appeal is via a one-sentence statement with no explanation; however, in the Kennedy case, it was accompanied by a six-page explanation written by Justice Alito and joined by Justices Thomas, Gorsuch, and Kavanaugh indicating that the four believed the coach might have valid claims under the Free Speech Clause of the First Amendment, the Free Exercise Clause of the First Amendment, and Title VII of the Civil Rights Act’s prohibition of discrimination on the basis of religion, but also explaining why those issues weren’t “ripe for review” in the case. Constitutional Law: Due Process & Being Cut from Teams In May 2019, in another of the long line of precedents addressing with the issue whether students have a constitutional right to participate in school sports programs, a federal trial court judge denied a motion for a rehearing of his October 2018 ruling for the school in a case involving a high school soccer player cut from his team, Doe v. Ladue Horton Watkins High School (MO). The 16-year-old junior, identified in court documents as John Doe, didn’t make the varsity squad at the school and was barred from returning to the JV team because younger players were given priority based on the coach’s discretion. His family sued, claiming several constitutional and civil rights-related violations. However, in the court’s written opinion in the case, U.S. District Judge John Ross stated, “[the school] argues that Doe will suffer no harm because he has no legal right to participate in high school sports … the Court agrees … Courts have long held that participation in interscholastic athletics programs is not a property right, but a privilege … accordingly, Doe suffers no legal harm by being excluded from the JV team.” Constitutional Law: Due Process & Vaping In September 2019, in L.H. v. Lawrenceburg Community School Corporation, a Dearborn, Indiana, Superior Court judge ruled that the district did not violate the due process rights of a football player caught with a vape pen in May in violation of the student-athlete code of conduct regarding possession of alcohol, tobacco, or drugs by suspending him for five of the team’s nine games scheduled for the 2019 season. The complaint filed in the suit claimed that the policy allows for suspension from athletic participation only when a student tests positive for the use of alcohol, tobacco, or drugs (not for mere possession) and that even with a positive test, the maximum penalty is 50% of a season’s games. The complaint asserted that the player, L.H., did not test positive for nicotine in a drug test administered in June and that, even if he had, the five- game suspension was greater than the 50% allowed for such a violation (5/9 = 55.5%). The judge held that the code of conduct should be interpreted broadly and in his written decision stated that “The court looks at the totality of the Handbook and not one particular word or sentence … the [Handbook] imposes a specific 50% suspension for a positive drug test. The fact that the [Handbook] does not specifically provide for a specific % suspension for [possession of] a vapor pen does not prohibit a suspension at all … if the health dangers of vaping, discipline, and the importance of following rules/law are learned at the age of 17, at the cost of five high school games, it could be one of the best life lessons to ever happen to this young man.” The judge also commented that “This community has a rightful expectation that no student is smoking or vaping anything inside school buildings. The court encourages [the student] to learn from his mistake, but to move forward, and to live in the current moment. Each day is a gift, an opportunity to restore honor, and to earn trust from his parents, school, classmates, coaches, teammates, and community.” Despite the court’s reliance upon the concept that participation in interscholastic athletics is a privilege, not a right, and that schools are entitled to levy sanctions as a teachable moment remedy for misconduct, it should be noted that institutions would be best served by carefully crafting the language of codes of conduct and adhering with precision to that language in order to avoid providing violators with grounds to argue that the policy is being applied in an arbitrary and capricious manner justifying reversal of a teachable moment sanction imposed by the school. In March 2019, in Vega v. North Canton Central School District, a state trial court in Ohio refused a request to rehear its October 2017 dismissal of a suit by a high school football player who was attempting to challenge his suspension for the remainder of the season for violating the chemical abuse provisions in his school’s Student-Athlete Code of Conduct, a policy that explicitly covered tobacco and the possession or use of all tobacco-related products, including e-cigarettes, vape pens, and JUULs. An e-cigarette had fallen out of the player’s pocket in front of his coach and the player attempted to defend his possession of the device by arguing that he had not been adequately informed that it was covered by the Code of Conduct’s chemical abuse provisions. In dismissing the suit, the court noted that all student-athletes and parents had been informed that the policy included all tobacco-related products – including e- cigarette devices – and that the player’s participation in sports was a privilege, not a constitutionally protected property right. Constitutional Law: Equal Protection & Race-Ethnicity-Religion Discrimination In August 2020, in Arnold v. Barbers Hill Independent School District, a U.S. District Court ruled the grooming code at Barbers Hill High School (TX), which resulted in the suspension of and additional sanctions against two black students because of their dreadlocks, constituted discrimination based on race and ethnicity, thus violating the students’ Equal Protection rights. The young men argued that the school’s hair restrictions primarily impacted persons of color and that in addition, their hairstyles were related to their Trinidadian ancestry and culture. The district stated in a press release “[w]e do have a community supported hair length policy … Barbers Hill is a state leader with high expectations in all areas!”, although it failed to explain either in the statement or during the evidentiary hearing held before the court why dreadlocks were inconsistent with its academic mission as an educational institution. In September 2019, in another legal pronouncement illustrating the standard of practice that should be applied by sports officials, state associations, schools, and coaches, with regard to dress codes, grooming requirements, hairstyle rules, and similar policies affecting student- athletes, the New Jersey Division on Civil Rights and the New Jersey Attorney General’s Office issued a new Equal Protection guidance related to hairstyle discrimination following the December 2018 incident when a wrestler for Buena High School was ordered by a match referee to either cut off his dreadlocks or forfeit his match. Video of the official supervising the visibly- distressed wrestler as his hair was cut by an athletic trainer on the mat in front of a gymnasium full of spectators was shown on news and sports programs nationwide and went viral on the internet. The referee claimed that he believed the wrestler’s locks to be in violation of an NFHS rule governing the length of an athlete’s hair and the circumstances in which a student-athlete must wear a hair covering. In the DCR guidance, the agency stated that discrimination includes requirements based on traits that are intertwined or closely associated with race, ethnicity, religion, or other protected class status. Furthermore, the DCR and the New Jersey State Interscholastic Athletic Association announced an agreement that included a review of all rules having a potentially discriminatory impact, implicit bias training for school athletics personnel, and a two-year suspension of the referee, who despite being acknowledged in the media by colleagues as an excellent wrestling official, had allegedly been involved in previous race-related disputes away from the mat. The lesson to be learned from the Barbers Hill and Buena Vistas incidents is that any grooming requirement for student-athletes that might disproportionately impact individuals of a particular race, ethnicity, religion, gender, or other protected class – unless justified by significant safety implications – should be eliminated. Constitutional Law: Equal Protection & Transgender Students

Note: The Equity and Inclusion Policies of the Nebraska School Activities Association, including the policy related to the participation of transgender students in school sports programs and the application form for transgender students to participate in the sport of their gender identity, are available at https://nsaahome.org/equity-inclusion-information.

On January 20, 2021, the day of the Presidential Inauguration, Joe Biden signed a series of Executive Orders, including EO 13988, titled Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, explicitly reinstating protections against discrimination for LGBTQ individuals, students and student-athletes that had been developed and implemented during the two terms of President William Clinton’s presidential administration, and continuing during the two terms of President George W. Bush’s administration, and extending through the two terms of President Barack Obama’s tenure in office, with a clear trend emerging that the word sex in Title IX references gender identity, not gender at birth – protections that had been erased during the last four years by the now-outgoing presidential administration. A digital version of EO 13988 is available at www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf and its Federal Register Citation is 86 FR 7023 Document Number 2021-01761. The restoration of the policy that the definition of the word “sex” in Title IX refers to “gender identity” will likely affect the outcome of OCR complaints, federal lawsuits, and proposed/enacted state laws related to the sports participation rights of transgender students. A complaint filed with the OCR against the Connecticut Interscholastic Athletic Conference (CIAC) and six school districts challenging a policy that permits transgender student-athletes to compete based on their gender identity, along with a parallel federal lawsuit, Soule et al v. Connecticut Association of Schools, are now likely to be resolved in favor of the defendants. In fact, on April 25, 2021, a U.S. District Court dismissed the lawsuit and although the original plaintiffs may appeal that dismissal, the court’s ruling is a strong statement in favor of the participation rights of transgender student-athletes. A federal lawsuit underway in Idaho, Hecox v. Little, dealing with the legal validity of a state law limiting the right of transgender females to compete on sports teams based on gender identity will likely result in the statute being struck down, an outcome that will probably have a similar impact on such state laws proposed or already enacted in more than a dozen states. The Executive Order also reinforces the rulings by U.S. Courts of Appeal in G.G. v. Gloucester County School Board (4th Circuit), Adams v. St. Johns County School Board (11th Circuit), and Doe v. Boyertown Area School District (3rd Circuit), that transgender students and student-athletes should be permitted to use the restrooms, locker rooms, and shower rooms consistent with their gender identity and that the arguments proffered by objectors that the privacy rights of cisgender (non-transgender) students are violated by such policies are based on stereotypes and false analogies. For instance, the written opinion in the Adams case noted that “Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead he argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view. The School Board has demonstrated no substantial relationship between excluding [Adams] from the communal [facilities] and protecting student privacy.”

“After extensive evidence was presented at trial, the District Court found that [Adams] presence in the boys’ [facilities] does not jeopardize the privacy of his peers in any concrete sense. When [he] uses the restroom, he enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves. The School Board received no reports of privacy breaches [during Adams’ use of boys’ facilities]. Indeed, the School Board could not produce any complaints of untoward behavior involving a transgender student. Nor could the School Board point to any incidents across the country in which allowing transgender students to use [school facilities] according their gender identity compromised other students’ privacy.”

EO 13988 will likely alter the August 31, 2020, U.S. Department of Education’s Office for Civil Rights (OCR) Revised Letter of Impending Enforcement Action, updating its approach to Title IX enforcement in light of the U.S. Supreme Court’s June 15, 2020, 6-3 decision in Bostock v. Clayton County, in which the high court held that an employer who discriminates against an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Although the Supreme Court’s ruling in the Bostock case, a consolidation of three lawsuits alleging discrimination against LGBTQ persons in the workplace – employment law being the subject of Title VII – did not explicitly address legal standards related to such bias under other statutes such as Title IX, the Court’s conclusion that a person’s “sex” is defined by gender identity, not by biological gender, has given rise to much speculation as to how it might rule in some future case addressing Title IX discrimination issues involving the right of trans student-athletes to participate in sports and to use school facilities such as restrooms, locker rooms and showers.

On May 15, 2020, the OCR had issued its original Letter of Impending Enforcement Action in response to a complaint alleging that the Connecticut Interscholastic Athletic Conference (CIAC) and six school districts in the state violate Title IX with a policy that permits transgender student-athletes to compete based on their gender identity. The complaint, accompanied by the separate filing of a federal lawsuit, Soule et al v. Connecticut Association of Schools, was lodged by three female cisgender (non-transgender) track athletes asserting that it was impossible for cisgender female athletes to prevail in sports competitions against transgender girls, thus purportedly denying cisgender females the opportunity to place higher in meets, win championships, attract the attention of college coaches, and obtain scholarships – all alleged violations of Title IX which prohibits discrimination based on sex in federally funded education programs, including athletics.

In both the original letter issued in May 2020 and the revised, post-Bostock version issued in August 2020, the OCR concluded that for purposes of Title IX enforcement, the agency considers the term “sex” as used in the Title IX statute to be biological gender, not gender identity, and that it therefore finds the transgender participation policy of the CIAC and school districts to be in violation of Title IX (the revised letter is available at www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01194025-a2.pdf). The following are several of the judicial decisions issued during 2020 which are representative of the trends in rulings on the issue by U.S. District Courts and U.S. Circuit Courts of Appeal nationwide. On August 26, 2020, in G.G. v. Gloucester County School Board the U.S. Fourth Circuit Court of Appeals ruled in favor of Gavin Grimm, who as a sophomore at Gloucester County High School (VA) in 2014 was barred from using boys’ restrooms and filed a lawsuit resulting in a June 2016 Fourth Circuit decision that the term “sex” in the Title IX statute refers to gender identity, not biological gender at birth, and that to restrict a student’s use of school facilities because he is transgender constitutes illegal discrimination in violation of Equal Protection principles and Title IX law. The 2016 ruling was predicated on the OCR Title IX Guidance issued during the Obama presidency (referred to above) clarifying the rights of LGBTQ students in education and school activities such as sports. The U.S. Supreme Court had agreed to hear an appeal of the case and oral arguments were docketed for March 2017, but during President Trump’s first month in office, the Obama Title IX Guidance was revoked by the new president’s administration and the Supreme Court sent the case back to the lower courts for a rehearing. The 2020 Fourth Circuit decision in the G.G. case upheld a 2019 ruling following that rehearing by a District Court which concluded that even in the absence of the Obama-era Title IX Guidance, gender identity is the controlling factor governing the rights of transgender students in education and activities such as sports. “At the heart of this appeal is whether equal protection and Title IX can protect students from school bathroom policies that prohibit them from affirming their gender,” stated the written opinion in the case. “We join a growing consensus of courts in holding that the answer is resoundingly yes.” On August 7, 2020, in Adams v. St. Johns County School Board, the U.S. Eleventh Circuit Court of Appeals upheld a District Court ruling that a Nease High School (FL) policy preventing Drew Adams, a transgender boy, from using school facilities such as restrooms, locker rooms, and shower rooms corresponding to his gender identity (male), not to his biological gender at birth (female), violated both his Equal Protection rights under the U.S. Constitution and his educational rights as set forth in the Title IX statute. The counterargument, asserted by school administrators, was that the policy was designed to protect the privacy of cisgender students when they used such facilities. The written opinion in the case noted that “Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead he argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view. The School Board has demonstrated no substantial relationship between excluding [Adams] from the communal [facilities] and protecting student privacy.” “After extensive evidence was presented at trial, the District Court found that [Adams] presence in the boys’ [facilities] does not jeopardize the privacy of his peers in any concrete sense. When [he] uses the restroom, he enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves. The School Board received no reports of privacy breaches [during Adams’ use of boys’ facilities]. Indeed, the School Board could not produce any complaints of untoward behavior involving a transgender student. Nor could the School Board point to any incidents across the country in which allowing transgender students to use [school facilities] according their gender identity compromised other students’ privacy.” EO 13988 supports the August 17, 2020 ruling in Hecox et al v. Little, a U.S. District Court decision in Idaho blocking the implementation of a state statute, Idaho HB500, limiting participation by transgender women and girls on university and high school athletics teams, concluding that the law violates the Equal Protection guarantees set forth in the Fourteenth Amendment to the U.S. Constitution. A lawsuit was filed by transgender Idaho college and school athletes in March 2020 after HB500 was enacted and the TRO issued by the federal court will bar its implementation pending a full trial in the case. In issuing the injunction, the District Court concluded “In making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue, but the constitutional rights of every girl and woman Idaho. Because the Court finds Plaintiffs are likely to succeed in establishing the Act is unconstitutional … it must issue a preliminary injunction at this time pending trial on the merits.” Although Idaho’s law was the first of its type to be enacted, similar legislation – including several proposed statutes containing a provision like one in Idaho’s mandating that schools perform intimate physical examinations of any student-athlete who is even suspected of being trans – has been introduced in more than a dozen states to ban transgender females from college and high school sports teams, despite actual evidence that trans athletes do not win every competition. In fact, in February 2020, just a few days after serving as one of the complainants in the OCR filing against the CIAC and one of the plaintiffs in the accompanying Soule federal lawsuit filed in Connecticut (see above), Chelsea Mitchell of Canton High School – a cisgender sprinter who claimed in the filings that she should not have to run against trans competitors because she had absolutely no chance of ever prevailing against them athletically – won the Connecticut Class S 55-meter dash state championship with a time of 7.18 seconds, edging Terry Miller of Bloomfield High School, one of the transgender girls specifically mentioned in the filings, who finished the race at 7.20 seconds. In May 2019, in Doe v. Boyertown Area School District, the U.S. Supreme Court denied a petition for certiorari seeking to appeal the July 2018 ruling by a three-judge panel of the U.S. Court of Appeals for the Third Circuit that rejected claims made by six cisgender students at Boyertown Area Senior High School (PA), who argued that their rights were violated because of having to encounter transgender teens using the restrooms or locker rooms at the school consistent with their gender identity. The Appeals Court also denied the request of the appellants for an en banc rehearing of the case by all 12 judges who serve on the Third Circuit (en banc designates a hearing by all of the judges on an appellate court, rather than by a panel of three judges selected from among them). In 2016, the Boyertown Area School District (BASD) implemented a new policy allowing students to use the restrooms or locker rooms consistent with their gender identity, including a procedure through which the transgender student applies and receives approval from a team of trained school counselors and administrators before receiving permission to use the gender-aligned facilities of their choice. The district also constructed numerous single-user bathrooms (eight at the high school), alternative dressing rooms attached to locker rooms, and private shower stalls, so that any student or student-athlete who felt uncomfortable in the presence of a transgender student could choose to use a private facility. Constitutional Law: Privacy Issues & Mugshots In January 2020, in what has become known as the “Super Pooper” case, the November 2019 dismissal was finalized of Tramaglini v. Holmdel Township, a federal lawsuit filed by the former superintendent of the Kenilworth Public Schools (NJ) against the Holmdel Police Department claiming that his right to privacy was violated by the release of his mugshot to the media following his arrest for defecating on the athletic fields of the Holmdel Township School District. The superintendent was arrested at 5:50 a.m. on April 30, 2018 in flagrante delicto after weeks of students and staff reporting that human feces were being discovered on the football field and surrounding track on an almost daily basis. Despite his assertions that he suffered from “runner’s diarrhea,” Tramaglini had no explanation why he didn’t use restroom facilities that were available immediately adjacent to the track, and in October 2018, he pleaded guilty to a single misdemeanor, resulting in a $500 fine plus court costs, and he resigned from his school district post. The dismissal of the former superintendent’s suit reinforces the legal standard that it is not an invasion of privacy for the police to release a mugshot to the media. Constitutional Law: Defamation Suits Against Parents In April 2020, a rehearing was denied of a decision from September 2019, in McGuire v. Bowlin, in which the Minnesota Supreme Court ruled that parents who disseminate false information about a high school coach may be sued for defamation. From the fall of 2012 to the spring of 2014, Nathan McGuire was the head coach of the girls’ basketball team at Woodbury High School, during which time he faced increasing criticism from several parents of players who accused McGuire of various forms of misconduct. As set forth in the written opinion in the case, it is unclear from the facts whether any actual misconduct occurred or whether the parents were merely dissatisfied with their daughters’ playing time and the coaching strategies being used by McGuire, but the parents engaged on a campaign apparently designed to get the coach fired by circulating rumors that he had recently been in jail (a falsehood), had stolen funds from the school (another falsehood), and had mistreated members of the team in violation of state law (an investigation following maltreatment-of-minor reports filed by the parents with the Minnesota Department of Education concluded no mistreatment had occurred). McGuire filed a defamation suit against the parents, with the case eventually reaching the state supreme court on the question of the legal standard for determining whether a coach has been defamed by statements made by parents, specifically the question whether a public school coach is considered to be a “public official,” thereby invoking a higher burden of proof on the coach while attempting to prove defamation and collect damages from the defendant-parents. The Minnesota Supreme Court held that to prevail on a defamation claim against parents, the coach must show that:  the parents made a false and defamatory statement about the coach;  the statement was communicated to a third party;  the statement harmed the coach’s reputation in the community; and  the parents were at fault – fault requiring “actual malice” if the plaintiff is a public figure or public official or mere “negligence” if the plaintiff is a private figure. If the first three elements are resolved in favor of the coach, the key issue therefore becomes the classification question and the Minnesota high court concluded that a public school coach is not a public official and need not prove actual malice by the parents, but only that the parents were negligent in making false statements about him, unanimously deciding that “basketball is not fundamental to democracy” and that a coach’s duties are not “within the scope of governmental affairs” that would lead to a coach being classified as a public official. The case was remanded to a state trial court for disposition of the defamation claim using the negligence standard of fault, a determination likely to be made sometime during 2020. The case mirrors the many similar so-called “disappointment lawsuits” that have been filed in recent years by athletic personnel who claim they have been defamed by parents who are upset because they believe their children have been disadvantaged with regard to college scholarships or future pro sports opportunities because of a lack of playing time or a coach’s instructional strategies, the most well-known of which was a 2005 successful suit, Emme v. Martinez, a suit filed by a Newport Beach baseball coach who was awarded $700,000 by a jury when the father of a player circulated objectively false information about the coach that supposedly had cost the son a DI scholarship (proved to be a falsehood at trial) and diminished the player’s chances of being drafted by MLB (also proved to be a falsehood at trial). State Legislation: Protection of Sports Officials In March 2020, the Kentucky House of Representatives passed legislation, HB 65, strengthening the prohibitions on fans assaulting referees and toughening the penalties on those convicted of such actions. The state already had a statute on its books that was enacted in 1998 criminalizing attacks on sports officials, but numerous instances in recent years of violence against referees, including a 2019 attack in Kentucky by a coach on a basketball official resulting in a concussion and brain hemorrhage, led to the introduction of the new law. The bill was passed in the Kentucky House by a vote of 91-4 and will next be considered by the Kentucky Senate (it has been on hold for the last nine months because of the pandemic). Presently, all 50 states and D.C. have legal protections, both criminal and civil, in place for all citizens against assault, battery, and harassment. 24 states have assault laws specifically designed to protect sports officials. A survey conducted in 2017 by the National Association of Sports Officials and completed by more than 17,000 officials found that 80% of officials quit after two years and that harassing behavior by adult spectators at sports events is the primary reason they quit. For a complete listing of jurisdictions with laws specifically protecting referees, consult the Sports Officials Legislative Scorecard Map available at www.naso.org. The following is the full-text of Kentucky HB 65: Criminal Liability for Attacks on Sports Officials Section 1: Any person who physically assaults any sports official at any level of competition, within the confines or immediate vicinity of the athletic facility at which the athletic contest in which a sports official was an active participant shall be guilty of a crime which shall be punishable by a fine of $10,000 and/or imprisonment to a maximum of three (3) years. Section 2: This law shall take effect immediately. Limited Civil Liability for Sports Officials Section 1: Sports officials who officiate athletic contests at any level of competition in this State shall not be liable to any person or entity in any civil action for injuries or damages claimed to have arisen by virtue of actions or inactions related in any manner to officiating duties within the confines of the athletic facility at which the athletic contest is played. Section 2: Sports officials are defined as those individuals who serve as referees, umpires, linesmen, and those who serve in similar capacities but may be known by other titles and are duly registered or members of a local, state, regional or national organization which is engaged in part in providing education and training to sports officials. Section 3: Nothing in this law shall be deemed to grant the protection set forth to sports officials who cause injury or damage to a person or entity by actions or inactions which are intentional, willful, wanton, reckless, malicious or grossly negligent. Section 4: This law shall take effect immediately, and shall apply to all lawsuits filed after the effective date of this law, including those which allege actions or inactions of sports officials which occurred prior to the effective date of this law. In April 2019, legislation was introduced in Ohio that would strengthen penalties for assaults on sports officials. The state already has laws in place making such attacks immediately before, during, or after sports events a misdemeanor, but the new legislation – House Bill 208 and Senate Bill 118, would raise the classification of the crime to a fifth-degree felony, punishable by up to a year in prison and a $2,500 fine, consistent with the legal protections in place for teachers, health care workers, and firefighters. The legislation has been on hold during the pandemic, but will be more fully considered during 2021. In March 2019, similar legislation was proposed in Louisiana that would expand already existing penalties for physical attacks on referees to include sanctions for harassment and threats. HB 184 would impose up to 90 days of jail time, fines up to $500, community service mandates, and counseling requirements on persons whose actions cause a sports official to fear for his or her safety, even if a physical battery did not ensue. Criminal Law: Fraud In January 2020, a settlement was reached in a dispute akin to a private citizen attempting to sell the Brooklyn Bridge or a tract of swampland in Florida, a financial fraud case that originated in March 2019 when court files were unsealed by the D.C. Attorney General related to a whistleblower lawsuit filed three years earlier, Washington International Soccer League & District of Columbia v. Washington, seeking $120,000 that had been paid by a recreational adult soccer league to Larry Washington, a resident of Laurel, Maryland, who allegedly had rented to the WISL playing fields belonging to the D.C. Public Schools by fraudulently misrepresenting to league officials that he was authorized to lease the venues on behalf of the school district when he was, in fact, merely a member of the community with no ties whatsoever to the district. Washington’s scam was successful for four years with the WISL playing its games on district fields until a high school custodian notified administrators at his school that a group of soccer players who had reserved a venue through proper channels showed up only to find its field in use by the WISL. The suit, based on the D.C. False Claims Act, had been under seal as is typical in whistleblower cases during the investigatory phase, until March when the D.C. Attorney General decided to intervene and join the WISL in the action. A jury trial has been requested and should take place sometime during 2020. Criminal Law: Disputes With Fans/Parents In March 2020, the verdict was finalized in Manning-Grate v. Brumble, a case in which in July 2019, the mother of a high school football player at Eastern Alamance High School (N.C.) was awarded $38,000 by a jury for battery by an assistant coach who grabbed her by the arm and forcibly pushed her out of a locker room after she was sent there by the school’s AD to retrieve the clothes and personal belongings of her son, who had been injured during that night’s game and been sent to a medical clinic for medical attention and x-rays. When she arrived at the locker room, according to the lawsuit filings, the assistant coach inexplicably lost his temper and began screaming at her before grabbing her and pushing her backwards, releasing her only when he realized that his actions were in plain view of multiple witnesses. Most high school athletics cases involving intentional torts such as assault and battery occur in the context of coaches administering excessively violent or foreseeably dangerous punishment to players and involve allegations of failing to satisfy the duty of proper technique instruction. Because it requires only the exercise of a bare minimum of common sense, courts have not found it necessary to establish a separate duty for athletics personnel not to commit assault or battery on parents of student- athletes, sports officials, spectators, or other third parties, however, as a standard of practice to be incorporated into coaching handbooks, an explicit written prohibition on such misconduct might be a valuable inclusion. Liability for Sports Injuries: Supervision & Technique Instruction In November 2019, in Mesar v. Bound Brook High School and John Suk, a jury rejected the negligence claim of a former Bound Brook (NJ) high school baseball player who had sued his school and coach for more than $1 million alleging that improper supervision and improper technique instruction had resulted in him breaking his ankle and having to endure three surgeries. In the spring of 2012, during Mesar’s first game, while trying to stretch a double into a triple, the coach – also serving as the third-base coach during the contest – signaled for the player to slide during which he sustained the injury. The jury agreed with the arguments set forth by the school and coach that sliding into base during a game is a routine and highly foreseeable play during which players assume the risk of injury and that the signal by the coach to slide demonstrated reasonable care with regard to both supervision and technique instruction because it was intended to allow the player to minimize contact and minimize the risk of injury for the player approaching the third-base bag. After the verdict was delivered, one of the jurors commented “I don’t think the coach had any intention of hurting the kid when he told him to slide. It just happened. How was the coach reckless? That’s how you play the game.” In March 2020, the Michigan Court of Appeals, in Trecha v. Fenton High School and Remillard, upheld the dismissal of a lawsuit by a high school tennis player who suffered severe injuries to his right eye when struck with a ball hit by a teammate out of frustration during a 2016 practice session at the school’s tennis court complex (similar to the way in which, during the 2020 U.S. Open, Novak Djokavic swiped at a ball in anger, resulting in it hitting a lineswoman and leading to his disqualification from the tournament). The appellate court, in ruling that the school and tennis coach had fulfilled the duties of exercising reasonable care with regard to supervision and proper technique instruction, noted that the injury occurred not because of any intent to harm by the player who hit the ball, but accidently as a function of so many tennis balls flying around simultaneously on the courts at the tennis complex, with the written opinion of the court stating, “[In] a team practice with multiple participants playing in close proximity, it is reasonable to foresee that [such an injury might occur]”. Liability for Sports Injuries: Safe Playing Environment In February 2020, a Pennsylvania Court of Appeals refused to grant a new trial in Hoffman v. Borough of Sewickley, a case originally decided in January, 2018, when a jury awarded $1.7 million to a former Little League baseball player who in April, 2015, suffered a fractured skull and permanent brain damage when a batted ball passed through an opening in the protective first-base dugout fencing and struck him in the head. His family eventually filed suit against the town and recreation associations that owned and operated the baseball facility at which he was injured, asserting that the defendants had “a duty to maintain Chadwick Field, provide a safe environment for baseball teams playing on Chadwick Field, and prevent baseball teams from playing on Chadwick Field if the environment would not be safe.” Despite previous incidents with players in the dugout being hit by batted balls, the court ruled that safe fencing was an “essential safety element” and that the defendants had not taken steps to repair what would have been a simple fix to protect players. In September 2020, the California Court of Appeals refused to grant a rehearing of its November 2019 decision in Blanchette v. Competitor Group, upholding a January 2018 jury award of $3.2 million to Craig Blanchette, a veteran wheelchair racer who won a bronze medal in the 1,500-meters at the 1988 Summer Olympics in Seoul, South Korea, and holder of more than 20 world records. In June 2014, during the San Diego Rock’n’Roll Marathon, he was severely injured in a collision with a car stopped at a red light adjacent to the race course when his wheelchair was unable to complete a 90-degree turn and collided with the vehicle, resulting in extensive personal injuries, multiple surgeries, and two-years of rehab. According to the written opinion in the case, Blanchette was one of only five wheelchair racers entered in the race, along with 25,000 runners, but the appellate court ruled that the race organizers had been grossly negligent in not ensuring that the course was safely laid out for all of the competitors and that he had not assumed the risk that cars would be allowed so close to the course. He had medical expenses and total damages in the amount of $4 million, but the jury determined that Blanchette was 20-percent contributorily negligent and therefore the race organizers were liable for only the remaining 80-percent, $3.2 million. The case illustrates the standard of practice that fulfilling the duty of providing a safe environment for a sports competition involves ensuring not just the safety of a stadium, gymnasium, or similar fixed-dimension venue, but also a non-traditional environment such as the layout of a road-race course. Liability for Sports Injuries: Heat Stroke In early August 2020, a settlement with undisclosed financial terms was reached in Estate of Bradforth v. Garden City Community College, a lawsuit seeking a total of $50 million for the August 1, 2018, heat stroke death of Braeden Bradforth, a 5’ 11”, 315-pound defensive lineman who collapsed on the first day of football practice after a conditioning test requiring, among multiple other activities designed to evaluate the cardiovascular and strength capacity of players, one drill involving each athlete running 36 timed 50-yard dashes. The case is highly relevant for high schools seeking to implement best practices to safeguard student-athletes, because it involves the failure to exercise reasonable care with regard to many of the duties owed to athletic program participants at all levels of sports, including supervision, proper technique instruction, safe playing environment, evaluation of players for incapacities affecting initial preparedness to participate, immediate medical response, activation of a carefully planned emergency medical response plan, and having in place a broad plan designed to protect the health and well-being of all student-athletes. An independent investigation conducted by noted sports medicine consultant Rod Walters, who conducted a similar review of the heatstroke death of Maryland football player Jordan McNair, revealed that after collapsing during the conditioning test, Bradforth was allowed to leave practice alone and was then found unconscious on campus near his dorm. An assistant coach was summoned, but delayed calling 911 in order to contact the head football coach, leading to a near-half-hour delay before EMTs arrived and a 75-minute gap from when Bradforth first exhibited symptoms of heat exhaustion at practice to his arrival by ambulance at the emergency room. Walters’ report also noted that coaches and trainers failed to assess whether the players, on that very first day of practice, were physically prepared for an outdoor fitness exam in summer temperatures at Garden City’s altitude of approximately 3000-feet. Ultimately, the report concluded that the athletic program and its staff had violated all of the specific duties of care owed to student-athletes, including most significantly the over-arching, threshold duty of planning – the obligation to develop and implement a broad strategy for protecting the health, safety, and well-being of the young people participating in the institution’s sports programs. Liability for Sports Injuries: Rhabdomyolysis & Sickle Cell Trait In March 2020, a federal court in Pennsylvania refused to grant a rehearing of its February 2019 decision in M.T. v. Penn Hills School District, UPMC Sports Medicine, & Peterman et al, a case in which M.T., a freshman football player, on the first day of practice in August 2015, sustained a serious heat stroke injury later determined by doctors to have been caused by a combination of inadequate hydration, a Sickle Cell crisis (the victim’s pre- participation physical exam and medical history questionnaire disclosed that he had Sickle Cell trait), and Rhabdomyolysis (a potentially fatal breakdown of muscle tissue and kidney failure resulting from excessively strenuous exercise). Although M.T. survived, he suffered permanent brain damage which will require lifelong medical care and extensive affiliated medical expenses. Based on technicalities involving the state’s qualified immunity statute and professional licensure requirements for athletic trainers, M.T. lost the suit, but numerous standards of practice emerged from the suit, including the paramount importance of gradual heat acclimatization for student-athletes, the absolute necessity for proper hydration strategies, the need for special supervision of athletes who are carriers of Sickle Cell Trait, and the value of having coaches and trainers with an understanding of Rhabdomyolysis prevention measures. One tool discussed in the court’s written opinion is the position statement issued by the National Athletic Trainers Association (NATA) in 2013 and continuously revised since its release titled Prevention of Sudden Death in Secondary School Athletics: Best Practices Recommendations (available at www.nata.org/sites/default/files/preventing-sudden-death.pdf). In December 2019, in Poloceno v. Dallas Independent School District and Keenan Washington, a U.S. District Court ruled in favor of the school district and a physical education instructor, based on technicalities regarding the interpretation of Title IX and the state’s Education Code, after a student collapsed while being disciplined by having to perform 260 consecutive “ceiling jumps” (jump squats) and was then diagnosed during her hospitalization with Rhabdomyolysis. Follow-up investigations by the DISD and by Texas Child Protective Services concluded that violations had occurred of district and legal guidelines governing acceptable student discipline and protections of student health, safety, and welfare, leading to the filing of the ultimately unsuccessful lawsuit by the victim’s mother. Despite the fact that the plaintiff lost the suit, the standard of practice illustrated by the case is that part of the duties of proper technique instruction and supervision is for athletic personnel to proceed cautiously and ensure that strategies for disciplining athletes do not pose unreasonably dangerous risks to the health and well-being of those young persons. Liability for Sports Injuries: AEDs In December 2019, in Diniro v. Aspen Athletic Club LLC, a case with implications for high school sports programs seeking to fulfill their duties to provide protective athletic equipment, a safe playing environment, and a reasonable immediate medical response to student- athletes, the New York Court of Appeals upheld a lower-court ruling denying a summary judgment to a fitness center. In May 2013, a health club member working out at the Aspen Athletic Club in DeWitt, New York, suffered a heart attack and later died, with his death eventually attributed to two non-functioning automated external defibrillators (AEDs) at the facility. Two AEDs were available on site, but one was an older model that had not been inspected in more than a year and whose batteries had decayed to a low-charge, non-working state, while the second was a newer model that had been purchased only months before the incident but was still sealed in its original shipping container without its batteries installed. The ruling by the Court of Appeals illustrates that the duty to provide protective equipment and a safe environment for athletic participants – including in high school sports settings – involves ensuring that venues have properly functioning AEDs on hand, that regular inspections are conducted of those AEDs (including their batteries), and that all athletic personnel are informed of the closest locations of AEDs in proximity to various gyms, stadiums, weight rooms, locker rooms, and practice facilities. Liability for Sports Injuries: Concussions Note: The full-text of the Nebraska Concussion Awareness Act, including all of the legally-mandated return-to-play protocols set forth in the statute, is available online at https://www.education.ne.gov/wp-content/uploads/2017/07/Concussion_Law_2014.pdf. In May 2020, on grounds that they were protected from personal liability by the state’s qualified immunity law for public employees, two coaches were dropped from a lawsuit filed in October 2019 in Utah state court, Finn v. Cache County School District, alleging that during a practice in October 2017, a former Ridgeline High School football player, Konnor Finn, sustained a concussion from a helmet-to-helmet hit, but after complaining of multiple symptoms of the traumatic brain injury to his position coach, was allegedly told to “man up … quit being a p#@*^ … and get back out there.” According to the lawsuit, feeling belittled by the coach and believing he was obligated to follow the coach’s instructions to continue practicing and playing in games, Finn suffered multiple additional blows to his head in practice and games over the next two weeks until another coach and an athletic trainer noticed an increasing display of concussion symptoms and referred Finn for evaluation, resulting in a diagnosis that he was by then suffering from second impact syndrome. Two years later, Finn still suffers from blackouts, seizures, extreme pain, memory loss, and other indicia of post-concussive syndrome. The suit sets forth all of the requirements in Utah state law and Utah High School Athletic Association policies regarding concussions and asserts negligence by the district in fulfilling the duties of selecting and training coaches, providing proper technique instruction to student-athletes, and evaluating players for injuries and incapacities such as concussions. The situation also illustrates the standard of practice for education-based sports programs that athletics personnel should avoid coercing student-athletes to play through injuries and should be cautious regarding the “motivational” language directed at players. The case is still in the early stages of the discovery process and no rulings beyond the dismissal of the two coaches from the suit have yet been issued by the Cache County Court in which it was filed. Liability for Sports Injuries: 7-On-7 Football In April 2019, in Aspinall v. Murrieta Valley Unified School District, a California Court of Appeals refused to grant a motion for a rehearing of its March 2018 decision in favor of a school district and football coach in a case in which a player sustained a severe concussion, resulting in permanent brain damage and other health problems related to a traumatic brain injury. William Aspinall was participating in a seven-on-seven tournament held during a spring semester physical education course required for all members of the Murrieta High School football team and which was taught by the junior varsity football coach. Players wore cleats, but not helmets or pads, and were instructed to play two-hand touch, avoid physical play, and to “only go at half or quarter speed.” However, according to the court’s written opinion, the coach “knew the participants would be aggressive, competitive, and going full speed” and the games became “brutal and very physical” and “participants were tackling, fighting, trash-talking, and getting hurt left and right.” As the sole supervisor for over 60 participants in the class and tournament, the coach was unable to control high level of contact during play and Aspinall suffered his injury when he and a teammate made head-to-head contact when they collided at full speed while trying to intercept a pass. Aspinall sued the district and the coach for negligence in failing to fulfill the duties of supervision, proper technique instruction, protective athletic equipment, evaluation of players for injuries, and immediate medical response. In an outlier of a ruling, the appellate court upheld a lower court jury finding that the defendants were negligent, but that Aspinall had not met the burden of proof in showing that his injuries were caused by the defendants’ lack of reasonable care and that Aspinall had assumed the risk of his injury. The appellate court also upheld the exclusion of expert testimony to the jury that would have established the need for and modern trend towards the use of helmets in seven-on-seven; the need for a greater number of supervisors for an activity with 60+ participants, and other failings of reasonable care in the operation of the PE class and tournament. Despite the district and coach escaping liability because of the appellate court’s decision, the standard of practice illustrated by the case is clear – to best ensure the safety of student- athletes, athletic programs must implement strategies during off-season programs to fulfill all of the categories of duties owed to the young people with responsibility for whose well-being schools and coaches are charged. Hazing Note: The full-text of the Nebraska state hazing law is available on the state legislature’s official website at https://nebraskalegislature.gov/laws/statutes.php?statute=28-311.06. In November 2019, in Doe v. Milton School District, a case representative of an issue that has been afflicting high school athletic programs for many years and related to which several dozen civil lawsuits and criminal prosecutions are litigated every year, a jury awarded a former Milton High School (VT) football player $280,000 for a 2012 hazing incident in which the victim, a freshman at the time, was at an unsupervised team dinner at a private residence, he was sexually assaulted by upperclassmen in an initiation ritual by physically holding him down and penetrating his rectum with a pool cue. The standard of practice that emerged from the jury’s verdict is that school districts and athletic personnel will be held responsible for failing to act with reasonable care with regard to developing and implementing a substantive anti-hazing policy, educating coaches and student-athletes about the policy, and supervising student-athletes in those situations and environments where hazing was most likely to occur. Another legacy of the case and the many similar incidents that occur every year across the country is that, because the victims of hazing in school sports programs are almost always minors, district administrators and athletics personnel must be sure to fulfill their mandatory notification duties under state child abuse reporting laws. The case was also noteworthy because another Milton student, Jordan Preavy, committed suicide one year after a similar attack, attracting national media attention to the situation at Milton. In a separate hazing case, in October 2019, an external review by a law firm, WilmerHale, was released regarding a sexual assault that took place on October 31, 2018, an incident that received the most extensive national media coverage of any sports hazing occurrence that year. The situation involved four football players, all minors, who were allegedly attacked and sodomized with a broomstick in an unsupervised locker room at Damascus High School, a sports powerhouse that is one of 25 high schools in the Montgomery County Public Schools (MCPS), the largest district in Maryland, which serves 160,000+ students in its 205 schools. On the following day, the incident was reported to school district officials after victims disclosed to their parents what had happened and after social media postings by members of the team attempting to apologize to the victims became public. Upon learning of the allegations, MCPS administrators immediately fulfilled their mandatory reporting duties under the Maryland Child Abuse Reporting Act and contacted law enforcement officials. According to the police report compiled through interviews with the five alleged perpetrators and the four victims, the “brooming” ritual was a hazing practice that allegedly went back many years in the football program at the school. In November 2018, four of the perpetrators were charged as adults with first-degree rape and other sexual assault charges, but each later had his case transferred to juvenile court. A fifth was charged as a juvenile with second-degree rape. All of the perpetrators negotiated plea deals, but because of the closed-nature of juvenile court proceedings, it is unclear precisely to what charges the five pleaded guilty and the punishments imposed on each. The WilmerHale external review was commissioned to determine whether hazing is endemic to MCPS athletics and activity programs and to identify strategies that should be employed going forward to protect students from hazing, bullying, and harassment. The review examined three key areas:  fostering a positive culture;  implementing robust supervision practices; and  ensuring timely reporting of incidents and appropriate responses. The review concluded that, overall, “MCPS has fostered a generally positive culture around athletics and other extracurriculars,” and “MCPS has a robust set of districtwide regulations with respect to mandatory reporting requirements and procedures.” The report did, however, identify procedures to strengthen supervision and safety for students participating in school-sponsored after-school activities, including: • Enhancing the after-school supervision planning process at high schools to provide greater clarity for coaches and activity sponsors creating supervision plans. • Launching the Student-Athlete Leadership Council, which will work with MCPS leadership to develop interactive student-led training for students on hazing, bullying and harassment. • Establishing a partnership with the National Center for Sports Spectator Safety and Security in order for the MCPS to become a national leader in best practices regarding after-school safety, security and supervision. • Restructuring central office and school-based supervision of athletics and after-school activities to ensure a more comprehensive, collaborative and intentional approach to supervision and safety. • Proposing budgetary initiatives to expand available resources to support security and supervision for high school after-school programming. • Supporting character education programming for students participating in athletics and extracurricular activities across all of our high schools. • Revising the Memorandum of Understanding with the Interagency Coordinating Board (ICB) for Community Use of Public Facilities to ensure that appropriate coverage and supports are in place regarding safety and security. This would include the creation of an emergency response plan and potential training of ICB staff members. • Reviewing MCPS procedures to clarify reporting processes for bullying and hazing. • Providing an annual briefing to the Board of Education on the state of athletics and after- school programming. A two-page summary of the external review and the full-text of the report, which could serve as a blueprint for any school district committed to developing and implementing strategies for the prevention and remediation of hazing, are available on the MCPS website at www.montgomeryschoolsmd.org. In May 2019, a $750,000 settlement, initially agreed to in September 2018, was finalized in the case of John Doe v. Hamilton County Department of Education, a federal civil suit filed against an East Tennessee school district, a high school principal, an athletic director, and a basketball coach related to a high school basketball hazing incident involving a former Ooltewah High School basketball player who required emergency surgery after his bladder was punctured in a hazing incident in which players were sodomized with pool cues. The plaintiff in Doe was a freshman on the Ooltewah High School basketball team, who as part of a hazing ritual that took place in the basement of a cabin in which the team was staying during a December 2015 road trip, was sodomized with a pool cue and sustained injuries so severe that he had to be rushed to a hospital for emergency surgery. Three other freshmen were also raped with the pool cue during the hazing. The situation led to the cancellation of the remainder of the team’s 2015-16 basketball season. The three perpetrators of the attack were convicted in a juvenile court of aggravated rape and aggravated assault and received sentences of varying lengths. The school’s athletic director pleaded guilty to failure to report child abuse and entered a diversion program which upon completion will permit his record to be expunged. The head basketball coach pleaded not guilty to similar charges, arguing that the Tennessee Child Abuse Reporting Law is too vague concerning who is required to report instances of sexual assault, to whom the reports should be made, and how timely such reports must be. The pleadings in the civil suit alleged knowledge by school personnel of a long history of hazing incidents in Ooltewah’s athletic program and a failure to develop and implement effective anti-hazing policies. Based on U.S. Supreme Court precedents, schools and personnel will be held strictly liable when someone in a position to take corrective action has knowledge that such harassment is occurring and exhibits deliberate indifference to remedying the situation, a two- prong analysis resulting in automatic liability if the criteria of knowledge and deliberate indifference are both established in a civil suit. A 23-page report issued following an investigation by the Hamilton County District Attorney’s Office and a 27-page report issued following an investigation by a law firm retained by the Hamilton County Board of Education set forth numerous recommendations regarding the strategies that schools should adopt when developing and implementing anti-hazing policies for athletic programs, including directives that schools should specifically define prohibited behaviors in the policy, that reporting and investigation protocols should be detailed in the policy, that all athletics personnel should be in-serviced regarding the policy, that all athletics personnel should receive education regarding the state’s child abuse reporting law (because most high school sports hazing victims are minors), that all student-athletes and their parents should receive copies of and education regarding the policy, that anti-hazing educational efforts should be focused on student-athletes and changing any culture of hazing that might exist in a school sports program, that appropriate team-building activities should be substituted for now- prohibited hazing rituals, and that athletic personnel should focus on supervising environments where hazing tends to occur, including preseason training camps, hotels during away game overnight stays, aboard buses during road trip transportation, and in unsupervised locker rooms. Sexual Harassment & Assault Note: The full-text of the Nebraska state law addressing the reporting of child abuse, including specifics regarding who are classified as mandatory reporters of child abuse and the methodology of filing reports, is available online at the Nebraska Legislature’s official website https://nebraskalegislature.gov/laws/statutes.php?statute=28-711. Because the victims of sexual harassment and sexual assault in high school athletics programs are often minors (along with in many cases the victims of hazing in school athletics programs), it is of paramount importance that ADs in-service all of their coaches, athletic trainers, and other personnel regarding their legal obligations related to reporting child abuse. Most of the lawsuits included in these materials are civil lawsuits for money damages, but in the case of mandatory reporters who fail to fulfill their duties to report child abuse, criminal prosecutions are increasingly common nationwide. In March 2020, two $2 million payments were made to settle Roe #1 v. Harrisonville School District and Roe #2 v. Harrisonville School District, two separate civil suits related to sexual relationships perpetrated against a 14-year-old girl and a 17-year-old girl by a teacher’s aide at Harrisonville High School (MO) who coached football and wrestling at the school. The lawsuits alleged that the district was negligent in its failure to exercise reasonable care to develop and implement an anti-sexual-harassment policy, to educate all staff and students regarding the policy, and to ensure substantive enforcement of the policy to protect potential victims against sexual harassment, assault, and abuse. In June 2020, the former coach was charged with multiple felony counts of sexual contact with a student, but those criminal prosecutions have yet to be resolved. In October 2020, in Thomas v. Federal Way School District, a former Federal Way High School (WA) student settled for $425,000 her lawsuit against the district and her school’s former boys’ basketball coach for allegedly covering up a 2016 incident in which a star player videotaped the girl performing oral sex on another player and showed the video to multiple students. The filing in the suit alleged that the coach was aware of the incident, had watched the video, and met with the parties and their parents, but failed to notify district officials or state child abuse reporting authorities in order to protect the school’s chances of winning a state championship. The coach was removed from his positions at the high school and reassigned to a job teaching P.E. at an elementary school. Per boilerplate language included in the settlement agreement, the resolution of the case does not serve as an admission of liability or wrongdoing by the district or coach. And in exchange for the $425,000 payment and dismissal of the case, language was also included implying that the district and coach had no duties of disclosure regarding the incident because the video was made outside of school hours and off school property. The standard of practice illustrated by the case, however, is that all athletic administrators and coaches should in all such situations of alleged sexual misconduct pass the information on to district officials – including the federally-mandated Title IX Coordinator – and also ensure that the requirements of the state’s child abuse reporting law are fulfilled. In January 2020, a lawsuit – Roe v. Dallas Independent School District – was filed against the district and several Hillcrest High School administrators and coaches by the mother of a former female student who in 2017, at age 14, was allegedly sexually assaulted by a 25- year-old man, Sidney Gilstrap-Portley, who was falsely posing as a 17-year-old Hurricane Harvey evacuee named Rashun Richardson in order to enroll at Hillcrest and play on its basketball team. Gilstrap-Portley was arrested and pleaded guilty to indecency with a child for his relationship with the girl, but the ongoing civil suit asserts that school administrators and athletic personnel were negligent in failing to conduct due diligence on the transfer and ignoring numerous red flags that should have tipped them off to his real identity (he was living with his fiancé and their child). In January 2020, a $2.75 million settlement agreed to in July 2019 was finalized in Doe v. Scotts Bluff Public Schools, a case involving the golf coach at a Nebraska high school, Michael Klein, who in November 2017 was sentenced to 24-to-32 years in prison on multiple counts of sexual assault against two former players who he groomed and developed sexual relationships with beginning when they were in their early teens. The complaint in the civil suit alleged sexual assault, sexual battery, and intentional infliction of emotional distress, along with assertions that school officials were aware of the coach’s misconduct, but failed to intervene to remedy the situation. The civil suit claimed that district administrators and school athletic personnel were aware of the abuse and failed to take steps to prevent it from continuing. Based on U.S. Supreme Court precedents, the legal standard that would have been applied to the case had it gone to trial is whether someone in a position to take remedial action had knowledge the abuse was occurring and exhibited deliberate indifference to correcting the situation. Knowledge plus deliberate indifference. This rule of law illustrates the need for schools, both with regard to protecting the safety of students and with regard to limiting liability, to take immediate corrective action whenever school personnel become aware that sexual harassment or violence is occurring on campus. The settlement paperwork, as is typical in such scenarios, included language that the resolution of the case was not an admission of wrongdoing or any liability on behalf of the district, but was agreed to merely to avoid the costs and uncertainties of continuing litigation.

Title IX & Sports Inequities In March 2021, in Gordon, et al v. UHSAA & Jordan School District, et al, a U.S. District Court in Utah issued its written decision in a landmark Title IX case in which the plaintiffs sought to have a state association create tackle football for girls in the state. In 2017, Samantha Gordon, a student at Herriman High School in the Jordan School District, along with other plaintiffs attending schools in the Salt Lake City area, sued the Utah High School Activities Association (UHSAA) and the Jordan, Canyons, and Granite districts, asserting that the failure of the state association and districts to offer separate tackle football teams for girls was a violation of their Equal Protection rights as set forth in the Fourteenth Amendment to the U.S. Constitution and of their statutory rights as set forth in the Title IX law. In 2012, at age nine, Gordon became famous via social media for her football exploits in a boys youth football league, leading to her being featured on the front of a Wheaties cereal box. In 2015, at age 12, she was one of the founding players in the Utah Girls Tackle Football League (UGTFL), an organization created by her father which in its first five years grew from 50 participants to 490. And in 2019, at age 16, during Super Bowl LIII, she was featured in the game’s top-ranked commercial titled NFL: 100-Year Game, in which an impromptu football game breaks out during a banquet for legends of the game ranging from Peyton Manning, Joe Montana, Jim Brown, Barry Sanders, and Emmitt Smith, to Patrick Mahomes, Baker Mayfield, Christian McCaffrey, Tom Brady, and Rob Gronkowski, with its conclusion showing Samantha Gordon with the ball running circles around the pros in a ballroom that has been completely destroyed by the pickup contest. In the Gordon, et al v. UHSAA & Jordan School District, et al. lawsuit, a 13-day bench trial (no jury; a judge deciding the case) took place between September 8 and 25, 2020, with closing arguments held on October 28, 2020, and a written ruling issued by the court on March 1, 2021.

The two legal issues presented by the case were the question as to whether the failure of the UHSAA and defendant-districts to offer separate high school tackle football competition for girls was a violation of Fourteenth Amendment Equal Protection principles and the question as to whether the failure to offer tackle football for girls was a violation of the mandates of Title IX?

Regarding the Equal Protection issue, the court ruled in favor of the UHSAA and districts, concluding that no constitutional violation had occurred because  girls across Utah are allowed to try out for boys’ football teams and do in fact play on those teams (albeit in far smaller numbers than boys*) and  no evidence was presented at trial that girls in Utah were excluded from boys’ teams solely because of their gender.

Regarding the Title IX issue, the court also ruled in favor of the UHSAA and districts, concluding that Gordon and the other plaintiffs did not satisfy their burden of proof to establish that the defendants had failed to fully and effectively accommodate the athletic interests and abilities of female students by showing three criteria:  unmet interest in a particular sport,  sufficient ability to sustain teams in the sport, and  a reasonable expectation of adequate competition for those teams.

* The most recent NFHS high school sports participation survey (pre-COVID-pandemic), containing data for the 2018-19 school year, detailed 1,006,013 boys nationwide playing on 11- player teams and 2,404 girls on 11-player teams, with the statistics for Utah (which were noted in the court’s written decision) being 8,596 boys and 19 girls participating on 11-player teams.

The full-text decision for the case may be found at https://casetext.com/case/gordon-v- jordan-sch-dist-1 and the NFHS high school participation survey archives are available at www.nfhs.org/sports-resource-content/high-school-participation-survey-archive. In June 2020, announced to coincide with the 48th anniversary of the enactment of Title IX, a resolution agreement finalized in March 2020 between the OCR and the Oakland Unified School District will restore girls’ lacrosse, girls’ tennis, and girls’ golf, all of which were eliminated by the district in 2018 as part of a budget-cutting strategy. Application of Title IX’s “three-prong test” revealed that although the district’s high school enrollment was 49% female, only 39% of sports participation opportunities were available to girls. And analysis across the district of Title IX’s “other athletics benefits and opportunities” offered to boys’ teams as compared to girls’ teams indicated significant disparities for female student-athletes with regard to uniforms, equipment, supplies, facilities, locker rooms, access to quality coaching, practice times and scheduling methods, game times and scheduling methods, and modes of transportation. The settlement sets up a monitoring scheme through June 2023 to ensure that the OUSD closes the gap in participation percentages and “other benefit” inequities. Monitoring occurred throughout 2020 of a similar settlement that was reached in July 2019 of a Title IX dispute that had already entered the litigation phase. Filed in federal court in Alabama in June 2018, K.H. & S.T. v. Huntsville City Schools Board of Education, the original complaint in the lawsuit focused on inequities facing the girls’ softball team at Lee High School, but the investigation of the situation and ensuing court-approved settlement applies across all of the district’s boys’ and girls’ sports and includes measures to remedy inequities impacting all girls’ teams with regard to both sports participation opportunities and the eleven categories of other athletics benefits and opportunities. The original complaint in the suit illustrates the level of detail regarding Title IX with which interscholastic athletic administrators must be familiar (that filing is available at webpubcontent.raycommedia.com/waff/Lee_High_complaint.pdf). In February 2020, a settlement was finalized that had been agreed to in July 2019, in Tyler v. Huntsville City Schools, a federal lawsuit that originated with a formal complaint filed with the U.S. Department of Education’s Office for Civil Rights (OCR) alleging unequal treatment of the girls’ sports teams at Lee High School (Alabama) as compared to the boys’ athletics teams at the school, including inequities for female student-athletes in nine of the 11 broad categories of “athletics benefits and opportunities” that accompany sports participation. The dispute focused on issues related to the treatment of Lee High School’s softball program as compared to its baseball program, but was expanded to examine all of the girls’ teams at the school and the written settlement sets forth the nine general areas where preference had historically been given to boys’ teams, along with a timeline for the district to remedy dozens of specific problems within the nine categories, including  equipment, uniforms, and supplies;  scheduling of games and practice times;  travel, transportation, and per diem inequities;  access to quality coaching;  opportunity to receive academic tutoring;  locker rooms, practice facilities, and competition facilities;  athletic training and medical services;  meals and dining services; and  marketing/publicity services provided to teams. The settlement specifies that it is the responsibility of the school to remedy Title IX inequities even if the source of the funding that created the disparate treatment came from an outside source such as boosters, donors, fundraisers, or corporate sponsors. The district also agreed to pay the plaintiffs’ attorneys fees, $50,525.75. The full-text of the settlement is available at www.WAFF.com and provides any high school athletics program with a template of the expectations of the federal courts in Title IX disputes alleging special treatment of boys’ teams over girls’ teams. A comprehensive listing of OCR resolution agreements from recent years with school districts and the full-text of each is available in the OCR’s Reading Room at www2.ed.gov/about/offices/list/ocr/frontpage/faq/readingroom.html, an excellent resource for school and athletics administrators dealing with an OCR complaint or a Title IX audit to familiarize themselves with the OCR’s Title IX compliance framework. In May 2019, the final details were resolved relating to a June 2017 settlement of a Title IX retaliation lawsuit, Wallace v. Montgomery County Schools. $500,000 in damages was paid to a former Kentucky high school volleyball coach who was allegedly treated in a hostile and demeaning fashion before being fired by the district’s previous superintendent (who was himself allegedly fired for his actions), who believed the volleyball coach was responsible for an anonymous Title IX complaint to the OCR regarding inequitable treatment of the girls’ teams at the school. In 2005, the U.S. Supreme Court ruled in Jackson v. Birmingham Board of Education, a retaliation case involving a high school girls’ basketball coach who was fired for whistleblowing about the inequitable treatment of girls’ teams at his school, that money damages are available in Title IX cases to individuals subjected to any form of retaliation for reporting violations. Title IX & New OCR Sexual Assault/Harassment Regulations The following information regarding the 2020 release by the U.S. Department of Education’s Office for Civil Rights of the long-awaited new Title IX regulations addressing the handling by universities and K-12 schools of complaints regarding sexual assault and sexual harassment was provided by Peg Pennepacker, a recently-retired athletic director with 36 years of experience in public education. She is a member of the NIAAA legal issues teaching faculty, a nationally-known expert on Title IX who serves as a consultant on gender equity issues for universities and school districts across the country, and an active member of ATIXA (the Association of Title IX Administrators). On May 6, 2020, the United States Department of Education released new Title IX regulations that establish how education programs which receive federal funding must respond to sex discrimination, including sexual harassment. Much has been written about how the new rules apply to college classrooms and dormitories, but the new regulations also apply to elementary school playgrounds and high school sports programs. In fact, the regulations detail specific minimum responsibilities and requirements that apply to kindergarten through 12th grade. The date of implementation of the new regulations for schools was August 14, 2020, therefore, the new regulations process for schools is now in place. Title IX prohibits sex discrimination in a school’s activities and programs, and requires all schools, from K-12 to post-secondary institutions, to take appropriate steps to prevent and redress issues of sex discrimination. For many years, while the public’s focus has been drawn to Title IX at institutions of higher education, this legislation has always been and remains equally applicable to K-12 schools. To be clear, the new regulations do not affect Title IX compliance relative to a school’s obligation to provide a fair and equitable athletic program. Schools are still required to provide equitable opportunities and treatment to students who choose to participate in interscholastic athletic programs. The Office for Civil Rights (OCR) will continue to determine whether a school’s athletic program provides adequate participation opportunities through the “three- prong-test.” In addition, schools remain obligated to provide gender equity in the “other athletic benefits and opportunities” areas that accompany sports participation. As schools across the country develop budgets, accessing school funding and all the direct and collateral consequences of the pandemic, K-12 schools cannot ignore and must take the immediate step of addressing how to implement the new Title IX regulations. A major focus in the regulations is to ensure that alleged victims (complainants) and perpetrators (respondents) of sexual harassment are treated equitably during any complaint process. Among the key provisions for K-12 schools are: When a school district has actual knowledge of sexual harassment, the new regulations prohibit districts from responding in a manner that is “clearly unreasonable in light of the known circumstances.” A K-12 district has “actual knowledge” when any employee has notice of sexual harassment or allegations of sexual harassment. While many states already have mandatory reporting statutes for districts, the new Title IX regulations essentially make reporting a federal requirement. • Schools must respond when harassment occurs “in the school’s education or activity programs,” which would include athletic programs. Once a district’s response obligations are triggered, the Title IX coordinator must promptly contact the complainant to discuss supportive measures, consider the complainant’s wishes regarding supportive measures, and explain the process for filing a formal complaint. • The new regulations expressly recognize the legal rights of parents and guardians to act on behalf of students in Title IX matters. Parents or guardians of K-12 students are permitted to file complaints on their behalf and require parental notification of complaints against their children. Ultimately, the parents or guardians of students may make decisions regarding appropriate supportive measures or whether to file or withdraw a formal complaint. • School districts are required to offer and provide “supportive measures” to students, with or without a formal complaint. Supportive measures may include counseling, contact restrictions and modifications of class schedules to name a few. Additionally, districts must follow a grievance process before imposing any discipline or non-supportive measures against the respondent. School district administrators and leaders should consider the following steps as an outline of some things that need to be done in order to meet the requirements of the new Title IX regulations. • Review the current Title IX (sexual harassment) policy and identify who is currently responsible for implementing Title IX and responding to incidents in the school district; • Revise the existing or draft a new Title IX policy that is compliant with the Department of Education directives; • Identify the school district’s Title IX coordinator and clearly define his or her role. Post this information on the school district’s website; • Identify what other personnel may be needed to effectively implement and support the school’s Title IX policy and procedures which could prompt hiring considerations or shifts in existing personnel and their roles; • Notify all parents or guardians of students, students and employees who the Title IX coordinator is and how to report an incident of sex discrimination in a program or activity the school operates; • Understand what the Department of Education defines as actual knowledge of a Title IX incident that triggers any K-12 personnel’s duty to report it to the district Title IX coordinator. • Distribute and conspicuously post information and conduct training regarding the district’s approved Title IX policy and procedures; • Provide training that is comprehensive and continuous for all school district personnel including athletic coaches, to ensure they are knowledgeable about the new Title IX policy and procedures. • Ensure that a prompt and equitable grievance process and effective documentation procedures are in place for how the district receives and maintains information. Unfortunately, incidents of sexual harassment occur across the spectrum in K-12 schools. The new Title IX regulations increase the obligations K-12 schools have for addressing sexual harassment – including athletic departments. School district athletic administrators must take a proactive approach to address the requirements put forth by the new regulations. Among the essential steps for athletic administrators to undertake are: • Locate the school district’s Title IX coordinator. The district Title IX coordinator should not be the school district’s athletic administrator. The requirements of Title IX are extensive, and the Title IX coordinator’s duties and responsibilities go far beyond athletics. With the new Title IX regulations comes increased responsibilities for the district Title IX coordinator, which includes training of all school district employees and staff including cafeteria workers and bus drivers. The school’s athletic administrator may fill the role of deputy Title IX coordinator for athletic compliance as part of the administrative team. • Communicate regularly with the school district’s Title IX coordinator and meet with that individual on a consistent, routine basis. Collaborate in the training of coaches and athletic personnel. • Participate in all school district’s Title IX training opportunities. The athletic administrator should be a part of the school district’s “Title IX Team.” • Disseminate school district policies and procedures to the coaching staff and athletic personnel. Include policies and procedures in the coaches’ handbook and make the conversation about Title IX requirements a regular practice during coaches meetings, new coaches orientations and regular one-on-one conversations with coaches. • Be the expert of Title IX and its application to athletics. Learn about the law – do not fear the law. Seek assistance from resources and experts in the field. • Do not allow the athletic program to be isolated from the other functions of the school district. As the school district’s athletic administrator, seek to be included as part of the school district’s administrative team.

Fair Labor Standards Act In October 2019, the U.S. Department of Labor announced changes to the Fair Labor Standards Act (FLSA) requirements for an employee to be considered exempt with regard to the application of minimum wage and overtime requirements, an issue relevant to the use by high school athletic programs of non-exempt school employees as coaches or support personnel at sports events. The changes are to the minimum salary amounts for an employee classified as having executive, administrative, or professional duties (EAP) in order to qualify as exempt – they are being increased from $23,660 per year ($455 per week) to $35,568 per year ($684 per week). For an employee to qualify as an exempt “highly compensated individual,” the increase is from $100,000 per year to $107, 432 per year. A different set of increases had been scheduled to go into effect on January 1, 2017, but were rescinded after the 2016 presidential election. The new set of increases went into effect on January 1, 2020, therefore school districts need to reevaluate the status of anyone earning a salary between the old amounts and the new amounts. In January 2018, the U.S. Department of Labor (DOL) issued an opinion letter addressing issues regarding the application of the Fair Labor Standards Act (FLSA) to compensating non- district employees who coach interscholastic sports teams, in particular questions related to how coaches should be classified for purposes of the FLSA’s minimum wage and overtime requirements. The pronouncement focuses on the question whether coaches should be considered teachers. The FLSA specifically exempts teachers from its minimum wage and overtime requirements when they perform extra duties at their schools in support of activities such as sports, theatre, music, clubs, and other extracurricular pursuits designed to enrich the educational experience for students. In the opinion letter, the DOL analyzes FLSA regulations which exempt “any employee with a primary duty of teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.” The DOL acknowledges in the opinion letter that coaches who are full-time teachers in a school satisfy the “primary duty” requirement and are exempt from the minimum wage and overtime requirements. The DOL also concludes in the letter that non-district employees who coach – community members who, for instance, work at another job and serve as a stipended coach simply because they desire to be involved in a school’s athletic program – also qualify as teachers under the FLSA and are exempt from the minimum wage and overtime requirements because their “primary duty” while working with student-athletes is instructional in nature.

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