Lawyers debate class-action status for Title IX lawsuit against Lake Oswego School District
Attorneys in a Title IX case against the Lake Oswego School District debated the potential class-action status Wednesday of a federal lawsuit brought by 10 current and former members of the Lake Oswego High School softball team.
U.S. District Court Magistrate Judge Stacie F. Beckerman used the hearing to clarify key points in the case, but issued no ruling. The crux of the discussion: whether the Title IX case should include every female student at LOHS, and whether the plaintiffs adequately demonstrated that there are systemic inequities between male and female players.
"I found this discussion to be very helpful," Beckerman said, adding that she could make a decision on the class-action status within two months.
If she approves the motion, the lawsuit would apply not only to the original plaintiffs, but to every female student at the school. That would include about 600 students, or 48 percent of the student body.
The class-action motion, filed in December 2016, was intended to spotlight a disparity between the total percentage of female students at the school and the percentage of female students involved in interscholastic athletics (about 37 percent), said Andrew Glascock, who is working pro bono as the attorney for the LOHS softball team and players' families.
Glascock originally filed the Title IX lawsuit against the district on April 4, 2016. The suit states that female softball players have been denied equal access to the kinds of equipment, facilities, funding and fundraising opportunities that male baseball players enjoy. Title IX is a 1972 law that prohibits discrimination based on sex "under any education program or activity receiving federal financial assistance."
Another complaint in the class-action legal documents contends that "girls' teams have fewer opportunities to play games and experience the benefits of competition, in comparison to their male counterparts." According to the plaintiffs' motion, LOHS had 23 girls' varsity softball competitions in 2016 and 29 boys' varsity baseball games.
The lawsuit does not seek monetary damages, asking the court instead to order the district to make improvements to athletic facilities and make facilities use more equal, Glascock said.
The district has said it has sought to make such reparations, including opening up the baseball teams' artificial-turf field and hitting facility to softball players.
The plaintiffs also are represented by Title IX experts from the Legal Aid at Work in San Francisco, a nonprofit organization that works pro-bono cases. On Wednesday, Legal Aid attorney Kim Turner argued that there are systemic inequities in the district, including fewer levels in each sport for girls than boys. Softball only has a varsity level, for example, while baseball has varsity, junior varsity and freshman teams.
"Having been an athlete myself," Turner said, "the fact that there is no JV team really deprives the girls of the opportunity to scrimmage with another team or work out with another team."
Turner also said that equipment in the LOHS weight room is geared toward male athletes and that girls' basketball had its third level cut three years ago, whereas boys' basketball had a fourth level added recently. There also are more coaches and more publicity for male players, she said.
She also said that she had not seen a single example where girls are treated better than boys in athletics in her entire career.
"It's the inherent conflict," replied Blake Fry, one of the attorneys for the LOSD. "It's not what Ms. Turner alleges in her experiences."
Fry's arguments included that the legal documents entered by the plaintiff do not prove widespread inequity. For example, he said that there may not have been enough interest to support additional levels or teams in softball and other sports. He also said that more specifics proving that there are inequities at all levels should have been included in legal documents.
"The only specific allegations in the claim that are not related to softball," Fry said, "are just not enough on their own to support a (class-action) claim."
Originally, softball players' complaints included that they have no enclosed hitting facility and were not allowed to use the boys' indoor hitting facility. In addition, the softball team previously played on a dirt field at Lake Oswego Junior High, while the baseball team has an artificial-turf field on campus. The softball facilities lacked a bullpen, pitching area, warm-up area, batting cages or a way to separate the field to allow multiple practice stations, the lawsuit said.
After the suit was filed, the school district made improvements to areas the team identified as unequal: upgrading the indoor batting facility, adding an outdoor batting facility, putting in a bank of lockers and installing a flagpole at the softball field. But Glascock said at the time that the changes did not make the district compliant with Title IX.
Then in January 2017, the LOSD agreed to open the baseball field and hitting facility at LOHS to female and male athletes from a variety of sports. The field, which was previously used by baseball, lacrosse, cross country, soccer and football players, is now available to softball as well. The district also replaced the field's dirt mound with a removable plastic alternative.
Some of the softball team members and their parents attended the hearing and agreed afterwards that they love their school and that they support the bond to repairs schools that is slated to appear on the May 16 ballot.
"There is no reason why we wouldn't want this bond to help the schools," said Marna Tomita, mom of LOHS player Anna Tomita. "We just want equality for our daughters."
Softball player Kelsey Deos' dad, Kelly Deos, added that participating in this Title IX case and supporting the bond "don't have to be exclusive."