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Judge recommends class-action status for Title IX lawsuit
A federal judge has recommended that a Title IX lawsuit filed against the Lake Oswego School District should be granted class-action status and expanded to include every current and future female student at Lake Oswego High School.
In an opinion filed June 29 in U.S. District Court, Magistrate Judge Stacie Beckerman agreed with the case's original plaintiffs — 10 former and current members of the Laker softball team — that there is enough evidence of systemic inequities between female and male players at LOHS for the case to include all of the nearly 600 female students at the school— or 48 percent of the student body — as well as future students.
"The Court has already concluded that the Student Athletes have sufficiently alleged their equal treatment and effective accommodation claims on behalf of female athletes at LOHS beyond the members of the LOHS softball team," Beckerman wrote in her opinion.
Effective accommodation claims involve the opportunity to participate in sports, while equal treatment alleges sex-based differences in scheduling, equipment, coaching and other factors that impact participants in athletics.
"While the allegations in the Amended Complaint focus primarily on the disparities between the women's softball team and men's baseball team, the Court finds that the Student Athletes have included sufficient factual allegations challenging a systemwide imbalance between the women's and men's programs," Beckerman wrote.
The case now goes to U.S. District Judge Michael H. Simon for a final decision, which he is expected to issue within the next few months. The LOSD has 14 days from the date of Beckerman's opinion to respond with an objection.
The district's attorneys, who work for the Portland law firm Mersereau Shannon, could not be reached for comment Friday or Monday.
The Title IX lawsuit against the district was originally filed in April 2016. It alleges that female softball players have been denied equal access to the kinds of equipment, facilities, funding and fundraising opportunities provided to male baseball players. Title IX is a 1972 law that prohibits discrimination based on sex "under any education program or activity receiving federal financial assistance."
Another complaint, contained in the request for class-action status, 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, which was filed in December 2016 and argued before Beckerman in May, LOHS had 29 boys' varsity baseball games in 2016 but only 23 girls' varsity softball competitions.
The lawsuit does not seek monetary damages, asking the court instead to order the district to make improvements to athletic facilities and create equal access to facilities, according to local attorney Andrew Glascock, who is working pro bono for the softball players and their families.
The plaintiffs also are represented by Title IX experts at Legal Aid at Work in San Francisco, who say the case doesn't require "every single girl in the school to stand up against discrimination."
"A handful of girls who are brave and decide to take this on can do this on behalf of the others, or at least initiate the process," said Elizabeth Kristen, a Legal Aid at Work attorney and the director of the nonprofit organization's Fair Play for Girls in Sports project.
Kristen told The Review that, for her clients, the case was never about money but about making things better for girls at the school.
"Our clients have been waiting for a long time to get any measure of justice in this case," she said, "so I'm happy that this stage is moving forward."
Kristen noted that an effort to settle the case with the school district in June did not succeed. Settlement negotiations are confidential, so she declined to reveal the nature of those conversations.
Originally, softball players' complaints involved playing conditions and practice facilities. The softball team previously played on a dirt field at Lake Oswego Junior High that is susceptible to flooding, while the baseball team has an artificial-turf field on the LOHS campus that drains better and can be used even on rainy days. The softball facilities also 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.
In addition, the lawsuit states, the softball team has no enclosed hitting facility and was not allowed to use the boys' indoor hitting facility.
Beckerman addressed many of those claims in her June 29 ruling, but the judge said the alleged inequities at LOHS are not limited just to softball and baseball.
"Specifically, the Student Athletes allegations relating to access and use of the locker room and the weight room are not limited to the softball team and instead affect all female athletes at LOHS," she wrote. "In addition, the allegations relating to disparity in coaching staff among the women's and men's programs is system wide, as well as the allegations relating to publicity and promotion. Finally, the Student Athletes allege systemwide disparities in funding for women's sports at LOHS, including opportunities for fundraising through concession and program sales revenue."
After the suit was filed, the school district made improvements to areas the team identified as unequal, including upgrading the indoor batting facility and installing an outdoor batting facility.
Michael Musick, the LOSD's assistant superintendent of school management and its Title IX coordinator, told The Review in February that the girls would be allowed to use the boys' artificial field (the lower turf field) and the hitting barn, which would require both teams to change clothes in school locker rooms. (The boys previously changed in the hitting facility.) Both teams would have equal access to the facility, he said at the time. A schedule was created to allow softball and baseball players to play and practice on the artificial field.
"We are better utilizing our two turf fields while simultaneously providing equal access to the same facilities for males and females," Musick said.
But Glascock said at the time that the changes did not make the district compliant with Title IX.