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Deseret Morning News (Salt Lake City)
SALT LAKE CITY — For more than a year, Brent Gordon hoped he could persuade local high schools to develop girls tackle football programs.
In meetings with school and district officials, he was told there wasn't enough interest or it would be too expensive. Gordon, who started a girls recreation tackle football program four years ago, pointed out that most schools in the Salt Lake Valley are not in compliance with the Education Amendments Act of 1972 (Title lX) when it comes to offering enough opportunities for female students.
That, he said, did not persuade officials to work with him on developing high school football programs for girls.
"They have a problem with Title lX disparity," Gordon said. "And I'm trying to help out and grow opportunities for girls. I asked them, 'Will you at least let me come to the schools and hand out fliers at the schools and grow our rec leagues.' They said no. They wouldn't even let us hand out the fliers."
So last June, on the 45th anniversary of Title IX, seven female football players filed a lawsuit asking a federal judge to force three Salt Lake County school districts to comply with the law, which forbids gender-based discrimination in educational institutions that receive federal funding.
"They had no interest in addressing the issue," he said of the defendants in the suit — the Canyons, Jordan and Granite school districts, as well as the Utah High School Activities Association. "That's why we're here. Our preference would have been to work something out. ... I'm super proud of the high schools in our area. My kids go to these schools, and we don't want to be adverse to these schools that do so many great things for our kids."
But Gordon, who appeared in court with the attorneys representing the seven girls on Tuesday afternoon to ask Judge Robert Shelby to certify the lawsuit as a class action, said he also wants his daughter to have the same opportunities offered to her male counterparts.
Tuesday's hearing addressed whether or not this case will remain just about the seven girls or whether the girls can expand their fight to all female football players and/or all female athletes.
"The class certification is something we're asking for so we could have a remedy that benefits girls in the future," he said. "The disparity is so great, using their own numbers, that if you add (girls) football, that might not make up full compliance with Title IX."
The lawsuit uses UHSAA participation numbers and points out there are 700 more opportunities for male athletes than female athletes in each of the three districts.
Among the issues discussed in Tuesday's three-hour hearing was whether all female athletes or all female football players are in the same situation or suffering a similar injury, and whether there is enough interest in tackle football among women to make viable programs at each of the 22 high schools in those districts.
Assistant Attorney General Rachel Terry, who represented the districts, said each school district addresses the needs of their students through programming in very different ways.
"Each district takes this lawsuit very seriously," Terry said. "They're taking this lawsuit as an opportunity to see if they're meeting the interests and needs of their students. But what Granite might offer is very different than other districts."
She said that while it may seem female football players and female athletes competing in other sports may seem to have the same interests, they could end up at odds because schools have limited resources.
"We can't offer every sport that every student wants to participate in," she said.
UHSAA attorney Mark Van Wagoner suggested the inability to provide a viable number of possible plaintiffs was a reason not to certify the suit as a class action. "What we have today is in admissible speculation about what the numbers would be," he said. "That seems to be something we ought to know."
He said that because the plaintiffs see adding girls football as the only remedy to the Title IX deficiencies, there is a conflict with other girls sports, as school administrators could choose to fix the problem by adding other girls sports — or by eliminating boys sports.
He said a claim of equal protection requires proof of intent.
"Let's talk about what's here," he said. "What I hear is there is football, but there is no girls football. ... What the plaintiffs are suggesting is that equal protection requires ... some sort of change in status of these girls so they could have their own team."
While adding girls football might be an appropriate remedy under Title IX, he said it would be "an unusual remedy under equal protection."
Shelby asked the plaintiffs' attorney, Loren Washburn, what the common question was for either all female athletes or all female football players.
"The common question is whether the school districts effectively met the interest of (female students)," Washburn said.
He offered the fact that more than 200 girls played football in the recreation program started by Gordon, and suggested that because they're talking about an opportunity that's been denied, the case is similar to a civil rights case.
After a long discussion about how those numbers might be estimated, Washburn said that one thing the girls would have in common is that they were all denied opportunities.
"The fundamental injury," Washburn said, "is the failure to offer (the opportunities)."
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