All sides in the bench trial to determine whether three Utah school districts and the Utah High School Activities Association violated Title IX and the Equal Protection Clause of the U.S. Constitution by not providing high school football for girls mapped out what they’d like the judge to do should the plaintiffs win the case.
The trial officially ended Wednesday with closing arguments that lasted about eight hours. After each side made its case for the last time, they entertained the notion that U.S. District Judge Howard Nielson Jr. ruled either Title IX or the Equal Protection Clause was violated — or both — and what that would mean.
Loren Washburn, an attorney for the plaintiffs, said one remedy would simply be that Jordan and Granite school districts provide all-girl football teams. He argued that would satisfy the Title IX requirement because it would give girls who want to play tackle football an equal opportunity to do so.
Rachel Terry, who represents the school districts, said that remedy would effectively be creating an entirely different sport. Throughout the trial, much has been made of the physical differences between boys and girls who play football, the different rules in the Utah Girls Tackle Football League, the projected level of interest and participation for girls' football, and the minimum amount of girls needed for a school to field a team.
“What they’ve been asking for throughout this lawsuit is actually a program that is significantly different … with certain accommodations — meaning, ‘Change the rules for us. Instead of 11-on-11, 8-on-8. Instead of needing 35 [players], we can do it with 20. Maybe we need different rules,’” Terry said. “So what they’re asking for, really, is a remedy that is substantially different from any high school football program, from any program in the state.”
Washburn refuted the idea that plaintiffs were asking for anything different than what is already provided for boys. Furthermore, he argued that the infrastructure and staffing already exists to provide girls' tackle football at Jordan and Granite districts, potentially allowing new girls' teams to get off the ground in a matter of months.
“The version we’re asking for is 11-player football,” Washburn said. “They know how to do it. It’s just not that hard to do.”
Washburn said the school districts could always choose to satisfy Title IX by achieving more proportionality in participation within existing sports programs. But that would most likely mean eliminating a boys' sport because so many more boys play sports than girls.
Court documents from earlier in the case, which has spanned more than three years, ask the judge for a “permanent injunction suspending Districts' boys football programs until the Districts provide girls football teams.” Another request asks to suspend boys' sports as a whole until the districts provide substantially proportionate athletic participation opportunities to girls.
“We didn’t file this lawsuit because we want to see boys not play baseball,” Washburn said. “We didn’t file this lawsuit for anything like that. But it’s always an option that the districts have to come into compliance with Title IX.”
Football teams for only girls can also alleviate an Equal Protection Clause violation, Washburn said. But if that doesn’t happen, the districts can also be ordered to create what he described as an “actual co-ed football team with equal participation opportunities for girls.”
That would mean, Washburn said, that every school would need to encourage girls to play football the same way they do boys, gender-specific terms like “brotherhood” would be disallowed through an enforced policy, all home and away games would have “fully equal dressing facilities” for boys and girls regardless of whether there is currently a girl in a program, clearly articulated rules and policies from the UHSAA and school districts, and others.
Terry said the plaintiffs' idea to remedy the Equal Protection piece is “a moving target” compared to other reasons they had outlined for why girls needed their own teams.
“This is the first time we’ve heard this proposal,” Terry said. “This is a pivot.”
In terms of Title IX, Terry said the appropriate remedy for Jordan and Granite would be a compliance plan, an idea to which she said plaintiffs have been resistant.
“The districts are in the best position to assess what is in the best interest of their district,” Terry said. “So this compliance plan should be consistent with what needs those district need considering all available information.”
Canyons School District is also a defendant in the Equal Protection Clause claim.
Mark Van Wagoner, who represents the UHSAA, said if the court found the association violated the Equal Protection Clause, the judge could ask the USHAA to choose between discontinuing football, fielding separate football teams for boys and girls, or permitting both sexes to compete on the same football team.
Van Wagoner said the UHSAA would choose “the thing that we’ve been doing for 30 years,” which is to allow girls to play on boys' football teams.
Nielson said he will make his decision on the case as soon as he is able.
