Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

SILVANA COOK, on behalf of her minor

)

daughter; SHARI ROBINSON, on behalf of

)

her minor daughter; ERNESTINE BREWER,

)

on behalf of her minor daughter; SCOTT

)

PIRIE, on behalf of his minor daughter;

)

GRETCHEN GOODLET, on behalf of her

)

minor daughters; OMAR PASOLODOS,

)

on behalf of his minor daughter;

)

)

Plaintiffs.

)

)

v.

)

)

FLORIDA HIGH SCHOOL ATHLETIC

)

ASSOCIATION,

)

)

Defendant.

)

)

__________________________________________)

Case No.: 03:09-cv-547-J-32HTS

BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

This case involves serious allegations of intentional discrimination against female student

athletes by the Defendant Florida High School Athletic Association (FHSAA) in violation of

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., and the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution, two federal

laws enforced by the United States. Plaintiffs’ allegations include the following. FHSAA has

mandated 20% varsity and 40% sub-varsity reductions in the number of games permitted for all

sports except football and cheerleading in the two coming school years. By exempting football,

FHSAA has privileged the most popular sport for boys, involving 36,101 boys. Though FHSAA

also exempted cheerleading, this activity involves only 4,310 girls and 201 boys and may not

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 2 of 28
even qualify as a sport under Title IX’s criteria. Even if cheerleading qualifies as a sport, FHSAA has nonetheless exempted 32,000 more boys than girls, thereby subjecting almost all of the 95,741 female athletes in Florida (95%) to these reductions while exempting over a quarter of the 131,247 male athletes (28%) from the reductions. Plaintiffs notified FHSAA that its conduct violated Title IX and the Equal Protection Clause, but FHSAA chose to proceed regardless, exacerbating existing inequalities in the number of weeks FHSAA affords football (23 weeks) relative to the majority of girls’ sports (15 weeks).
These allegations clearly establish claims of intentional discrimination under Title IX and the Equal Protection Clause. Both claims also have a substantial likelihood of success on the merits. For these reasons and those set forth below, the United States urges this Court to deny FHSAA’s Motion to Dismiss and to grant Plaintiffs’ Motion for a Preliminary Injunction.
INTERESTS OF THE UNITED STATES This case poses questions regarding the proper interpretation and application of Title IX and the Equal Protection Clause to a state high school athletic association’s rules for athletic programs throughout the State of Florida. The United States has an interest in ensuring these two federal laws are interpreted and applied correctly given its responsibility for enforcing both. The United States Department of Education promulgates regulations interpreting and enforcing Title IX. 34 C.F.R. Pt. 106. Under Title IX and its implementing regulations, no individual may be discriminated against on the basis of sex in any interscholastic athletic program of an institution covered by Title IX. 34 C.F.R. § 106.41(a). The United States Department of Justice, through its Civil Rights Division, coordinates the implementation and enforcement of Title IX by the Department of Education and other executive agencies. Exec.
2

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 3 of 28
Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 4, 1980); 28 C.F.R. § 0.51 (1998). The United States’ enforcement efforts include participating in Title IX athletics cases as amicus curiae and plaintiff-intervenors. See, e.g., Communities for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 703 (6th Cir. 2006); Pedersen & United States v. S.D. High Sch. Activities Ass’n, CA: 00-4113 (D. S.D. 2000).
The United States Department of Justice also has significant responsibilities for the enforcement of the Civil Rights Act of 1964, which prohibits Equal Protection violations on the basis of sex, see Title IV, 42 U.S.C. § 2000c-6, and the Attorney General may intervene in any lawsuit in federal court seeking relief from a denial of equal protection under the Fourteenth Amendment. 42 U.S.C. § 2000h-2. The United States thus has an interest in the orderly development of the law regarding both Title IX and the Equal Protection Clause.
STATEMENT OF THE CASE On June 16, 2009, six parents, filing on behalf of their student athlete daughters who attend FHSAA member schools, sued FHSAA under Title IX, the Equal Protection Clause, and 42 U.S.C. § 1983. Plaintiffs claim that FHSAA’s new Policy 6 intentionally discriminates against female athletes by denying them equal opportunities with respect to game scheduling. Their complaint contains a similar claim under the Florida Educational Equity Act (FEEA). Plaintiffs also filed a Motion for a Temporary Restraining Order (“TRO Motion”) on June 19, 2009, and a Motion for a Preliminary Injunction (“PI Motion”) on June 22, 2009, supported by affidavits from three of the parents. This Court bypassed the TRO Motion and set an evidentiary hearing on the PI Motion for July 17, 2009. This Court ordered FHSAA to file any response to the PI Motion by July 8, 2009, with any supporting evidentiary materials, and
3

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 4 of 28
authorized Plaintiffs to file an optional reply by July 14, 2009. On July 1, 2009, FHSAA filed a Motion to Dismiss arguing that Plaintiffs pled a disparate impact claim under Title IX, the Equal Protection Clause, and the FEAA. On July 8, 2009, FHSAA filed an Opposition to the PI Motion (Opposition), supported only by an Affidavit from Samuel Hester, the Associate Executive Director and Chief Administrative Officer of FHSAA (Hester Affidavit).
SUMMARY OF ARGUMENT The Court should deny FHSAA’s Motion to Dismiss with respect to Plaintiffs’ Title IX and Equal Protection claims because accepting the factual allegations in the Complaint as true, Plaintiffs adequately pled an intentional discrimination claim under both federal laws. Both the Title IX and Equal Protection claims also have a substantial likelihood of success on the merits. FHSAA’s Motion to Dismiss and its Opposition to Plaintiffs’ PI Motion misconstrue Plaintiffs’ claims as alleging only disparate impact discrimination. Interpreted appropriately, these claims establish that FHSAA’s new Policy 6 constitutes an intentional, overall denial of equal game opportunities to female athletes under Title IX and that this practice cannot survive intermediate scrutiny under the Equal Protection Clause. Even assuming FHSAA’s asserted goals of achieving consistent game reductions and providing financial help to FHSAA member schools are important objectives, FHSAA fails to provide an exceedingly persuasive justification that new Policy 6 – which inconsistently and intentionally limits the game opportunities of almost all female athletes while sparing over a quarter of all male athletes – substantially advances either goal. The United States therefore urges this Court to preliminarily enjoin this policy because the irreparable harm to Plaintiffs caused by these reductions outweighs any potential threat to FHSAA inherent in maintaining the game schedules of the last school year. The preliminary
4

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 5 of 28
injunction also serves the public interest in enforcing civil rights laws. ARGUMENT
I. PLAINTIFFS’ TITLE IX CLAIM SHOULD NOT BE DISMISSED AND HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS In both its Motion to Dismiss and its Opposition to Plaintiffs’ PI Motion, FHSAA
challenges the sufficiency of Plaintiffs’ allegations and argues that Plaintiffs have pled only a disparate impact claim under Title IX. The United States first explains why Plaintiffs have adequately pled an intentional discrimination claim under Title IX with respect to FHSAA’s Motion to Dismiss. This explanation also applies to FHSAA’s Opposition to Plaintiffs’ PI Motion. The United States then explains why Plaintiffs’ Title IX claim has a substantial likelihood of success on the merits by refuting the additional arguments in the Opposition.
A. FHSAA’s Motion to Dismiss Plaintiffs’ Title IX Claim Should be Denied When deciding a Rule 12(b)(6) motion to dismiss, the district court must “limit[] its consideration to the pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement serves to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss, the complaint’s factual allegations must be taken as true “even if doubtful in fact” and “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal parentheses omitted). Meeting this threshold “do[es] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.”
5

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 6 of 28
Id. at 570. Because the Title IX allegations in Plaintiffs’ Complaint more than satisfy these legal standards, this Court should deny FHSAA’s Motion to Dismiss Plaintiffs’ Title IX claim.
1. Plaintiffs Pled an Intentional Discrimination Claim Under Title IX FHSAA characterizes Plaintiffs’ Title IX claim as alleging only that new Policy 6 has a disparate impact on female athletes, not that it constitutes intentional discrimination. See Def.’s Mot. to Dismiss at 4. This characterization ignores allegations in the Complaint that provide fair notice that their Title IX claim is one of intentional discrimination. See Compl. ¶¶ 3, 37, 56, 57, 60, 61; Twombly, 550 U.S. at 555. These paragraphs provide the requisite “short and plain statement” of a plausible claim entitling Plaintiffs to relief. Fed. R. Civ. P. 8(a)(2); see Twombly, 550 U.S. at 570. For example, paragraph 61 states: “The unequal, disparate treatment of female athletes, as detailed above, demonstrates Defendant’s intentional and conscious decision to discriminate on the basis of sex and to not comply with its Title IX obligations.” Compl. ¶ 61 (emphasis added). This paragraph refutes FHSAA’s contention that Plaintiffs did not allege that FHSAA acted with an intent to discriminate. See Def.’s Mot. to Dismiss at 5. Plaintiffs’ Complaint notifies FHSAA of the precise nature of their intentional discrimination claim under Title IX. Title IX’s 1975 Regulations make clear that the statute’s nondiscrimination provision, 20 U.S.C. § 1681(a), applies to interscholastic athletics and requires the “provi[sion] [of] equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c); see Compl. ¶¶ 32, 33. The Department of Education’s 1979 Policy Interpretation clarifies that an evaluation of equality of opportunity with respect to the scheduling of games must consider “the equivalence for men and women of: (1) the number of competitive events per sport[,]” among other factors. 44 Fed. Reg. 71,413, 71,416 (Dec. 11, 1979). As the Complaint
6

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 7 of 28
explains, FHSAA’s new Policy 6 intentionally denies female athletes equal treatment and benefits with respect to scheduling games and practice times, and this denial violates FHSAA’s Title IX duty to provide equal opportunity in athletics. Compl. ¶¶ 3, 32, 33, 36, 37, 38.
The 1979 Policy Interpretation and regulation, 34 C.F.R. § 106.41(c)(3), on which Plaintiffs rely “clearly aim to enforce § 901's [Title IX’s] ban on intentional sex discrimination by demanding equal opportunity in athletics.” Barrett v. West Chester Univ. of Pa., No. 03-CV4978, 2003 WL 22803477, at *13 (E.D. Pa. Nov. 12, 2003). Therefore, “Plaintiffs’ claim of intentional discrimination permits a private right of action to enforce th[is] regulation.” Id. (rejecting Sandoval challenge to plaintiffs’ claim to enforce 34 C.F.R. § 106.41c because the section “serve[s] to prohibit intentional sex discrimination”).1
2. Plaintiffs Alleged Facts Demonstrating FHSAA’s Discriminatory Intent To establish a violation of Title IX and its implementing regulations, Plaintiffs must show only that FHSAA intended to treat women differently in crafting Policy 6's exemptions, not that FSHAA acted with a discriminatory motive or harbored animus against female athletes. See, e.g., Pederson v. La. State Univ., 213 F.3d 858, 881 (5th Cir. 2000) (“[The university] need not have intended to violate Title IX, but need only have intended to treat women differently.”); Favia v. Ind. Univ. of Penn., 812 F. Supp. 578, 584 (W.D. Pa. 1993); Haffer v. Temple Univ., 678 F. Supp. 517, 539-40 (E.D. Pa. 1987). Despite FHSAA’s assertions to the contrary, Plaintiffs’ Title IX claim is supported by several alleged facts that would demonstrate that new
1 Contrary to FHSAA’s argument, see Def.’s Mot. to Dismiss at 3-4, even if the Supreme Court’s holding with respect to Title VI in Alexander v. Sandoval, 532 U.S. 275 (2001), applies to Title IX, Sandoval is no bar to Plaintiffs’ claim to enforce Title IX and this implementing regulation because this claim is not a disparate impact claim. See id. at 284 (“We do not doubt that regulations applying [Title VI’s statutory] ban on intentional discrimination are covered by the cause of action to enforce that section [of the statute].”).
7

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 8 of 28
Policy 6 is gender-based on its face, or, at the very least, reflects the requisite discriminatory intent by FHSAA in adopting the policy. See Def.’s Mot. to Dismiss at 5; Compl. ¶¶ 47-53; see also infra Sections II.A.2 & II.A.3. For example, Plaintiffs allege that new Policy 6 “expressly excludes boys’ football, the sport in which the most boys participate,” Compl. ¶ 48, and that “by exempting boys’ football from this reduction, FHSAA discriminates on the basis of sex in violation of Title IX.” Id. ¶ 56; see also id. ¶ 57 (FHSAA treats “boys’ football players as a special, privileged class of athletes.”).
In addition, Plaintiffs allege that the cheerleading exemption is not equal to the football exemption because OCR has not determined that cheerleading is a sport in Florida under its Title IX guidelines and that neither FHSAA nor its member schools conduct cheerleading in a way that would satisfy these guidelines. Id. ¶ 49. Even if cheerleading were to qualify as a sport under Title IX, Plaintiffs contend that new Policy 6 nonetheless intentionally discriminates against girls because it exempts almost nine times as many male athletes as female athletes from the 20% varsity and 40% sub-varsity reductions. Id. ¶¶ 50, 51. As a result, Plaintiffs claim that new Policy 6 “discriminates against girls by subjecting almost all of them but only some boys to its reductions.” Id. ¶ 51.
Plaintiffs also include three factual allegations regarding FHSAA’s history and decisionmaking regarding new Policy 6 that would demonstrate intentional sex-based discrimination by FHSAA. First, Plaintiffs claim that FHSAA previously discriminated against female athletes in 2002 by exempting boys’ football from a 20% reduction in the number of competitions for all other sports. Compl. ¶ 52. Second, FHSAA allegedly has been discriminating against female athletes by providing boys’ football with a total of 23 weeks of coaching, practices, and
8

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 9 of 28
competitions, while allowing only a total of 15 weeks for “the majority of girls’ sports.” Id. ¶ 53. The new Policy 6 exacerbates this alleged preexisting discrimination by reducing girls’ “already shortened interscholastic opportunities additionally . . . by up to 40%.” Id. ¶ 58. Third, although Plaintiffs allegedly told FHSAA that its new Policy 6 would violate Title IX and asked FHSAA not to proceed with the policy, FHSAA refused. Id. ¶ 60. This refusal or “failure to apply its new Policy 6 to all male and female sports uniformly or to exempt an equitable number of female athletes from its restrictions constitutes sex discrimination in violation of Title IX.” Id. ¶ 57.
The factual allegations set forth above, which must be assumed to be true, support a “plausible” claim of intentional discrimination under Title IX. Twombly, 550 U.S. at 570. Accordingly, FHSAA’s Motion to Dismiss should be denied with respect to the Title IX claim.
B. Plaintiffs’ Title IX Claim Has a Substantial Likelihood of Success In the Eleventh Circuit, the party seeking a preliminary injunction must demonstrate: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered absent an injunction; (3) that the threatened injury to the movant outweighs the injury the proposed injunction may cause to the opposing party; and (4) that the proposed injunction would serve the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir. 2005). When deciding whether to grant a motion for a preliminary injunction, “a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is ‘appropriate given the character and objectives of the injunctive proceeding.’” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985
9

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 10 of 28
(11th Cir. 1995) (citation omitted). To grant a preliminary injunction, the court “need not find that the evidence positively guarantees a final verdict in plaintiff's favor.” Id.2
There is a substantial likelihood that Plaintiffs’ Title IX claim will succeed on the merits because FHSAA’s three counter-arguments in its Opposition to Plaintiffs’ PI Motion should be rejected, and FHSAA fails to offer any justification for exempting football and cheerleading. First, FHSAA reiterates the argument from its Motion to Dismiss that Plaintiffs pled a nonviable claim of disparate impact under Title IX because they failed to allege that FHSAA adopted new Policy 6 with discriminatory intent. Def.’s Opp’n at 6-8. The Court should reject this argument for the reasons given above in Section I.A and the additional reasons stated below in Sections I.B.1-2 and II.B.1-3 with respect to the PI Motion. Second, FHSAA mistakenly argues that Title IX requires only a sport-by-sport comparison of the number of games scheduled. Id. at 10-11. Lastly, FHSAA unpersuasively contends that new Policy 6 is genderneutral because football and cheerleading are open to both sexes. Id. at 11. Furthermore, even after the Court directed FHSAA to file any supporting evidence with its Opposition, see Order of June 24, 2009, C.A. No. 3:09-cv-547, FHSAA’s Opposition and the attached Hester Affidavit failed to deny or refute key factual allegations raised in the Complaint. Moreover, FHSAA’s public records confirm the number of girls and boys allegedly affected by new Policy 6 in Plaintiffs’ Complaint. Compare numbers alleged in Compl. ¶¶ 50, 51 with FHSAA.org, 20072008 Sports Participation Survey, http://www.fhsaa.org/programs/participation/2007_08.asp (last visited July 14, 2009).
2 Because these standards apply to both Plaintiffs’ Title IX and Equal Protection claims, the United States’ Brief first addresses whether the Title IX claim is likely to succeed on the merits in Section I.B, then whether the Equal Protection claim is likely to succeed on the merits in Section II.B, and finally if Plaintiffs meet the remaining three requirements for a preliminary injunction in Section III.
10

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 11 of 28
1. Statistics Regarding Unequal Game Opportunities for Female Athletes Are Relevant Evidence Supporting Plaintiffs’ Title IX Claim
FHSAA argues that Plaintiffs’ Title IX claim is unlikely to succeed on the merits by recasting the claim as one of disparate impact and then citing several cases for the proposition that private individuals may not bring a disparate impact claim under Title IX. See Def.’s Opp’n at 6-7 (citing cases); see also Def.’s Mot. to Dismiss at 3-4 (citing the same cases). These cases fail to establish that Plaintiffs’ Title IX claim is unlikely to succeed because Plaintiffs have pled an intentional discrimination claim under Title IX. See Compl. ¶¶ 3, 27-39, 47-53, 54-61. Though Plaintiffs have not pled a disparate impact claim under Title IX, the statute makes clear that courts may consider “statistical evidence tending to show that . . . an imbalance exists with respect to the participation in, or receipt of the benefits of, any [athletic] program or activity by the members of one sex” “in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area” when evaluating whether Title IX has been violated. 20 U.S.C. § 1681(b). Thus, Plaintiffs’ allegations that new Policy 6 exempts nearly nine times as many boys than girls from its reductions, Compl. ¶¶ 50, 51, (which FHSAA has not refuted and its own public records confirm3), is relevant evidence that is likely to establish FHSAA’s intentional denial of equal game opportunities on the basis of sex in violation of Title IX. See Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993).
3 FHSAA’s public records reporting participation numbers by sport and sex for the 2007-08 school year confirm Plaintiffs’ numerical calculations. FHSAA.org, 2007-2008 Sports Participation Survey, http://www.fhsaa.org/programs/participation/2007_08.asp (last visited July 14, 2009).
11

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 12 of 28
2. There is a Substantial Likelihood that Plaintiffs’ Allegations of Intent Will Establish a Title IX Violation
In its Opposition, FHSAA again argues that Plaintiffs have not “alleged that FHSAA acted with intent to discriminate against female athletes by adopting revised Policy 6.” Def.’s Opp’n at 7. Plaintiffs have made this allegation sufficiently, see supra Sections I.B.1-2, and in the Title IX athletics context, Plaintiffs must establish only that FHSAA intended to treat women differently when it adopted new Policy 6, not that FSHAA acted with a discriminatory motive or harbored animus against female athletes. See, e.g., Pederson, 213 F.3d at 881; Favia, 812 F. Supp. at 584; Haffer, 678 F. Supp. at 539-40. FHSAA’s attempts to dispute that new Policy 6 constitutes intentional discrimination, Def.’s Opp’n at 10-11, will most likely fail because “[i]n the athletics realm of Title IX, intent is found on the face of most decisions.” Barrett, 2003 WL 22803477, at *11-*12 (citing and discussing Title IX athletics cases in which courts found athletics-related decisions reflected intentional discrimination).4
FHSAA’s failure to deny, let alone refute with evidence, four key factual allegations in Plaintiffs’ Complaint renders the success of the Title IX claim all the more likely. First, FHSAA does not dispute, and its records confirm, that its new policy exempts nearly nine times as many boys as girls. See Compl. ¶¶ 50, 51. Second, FHSAA does not dispute that it exempted only football from a similar reduction in games in 2002 or that it has provided the majority of girls’ sports only 15 weeks of coaching, games, and practices, while granting football 23 weeks. See
4 See, e.g., Neal v. Bd. of Trustees of Cal. State Univs., 198 F.3d 763, 772 n.8 (9th Cir. 1999). In Neal, the court explained that athletics decisions are gender-based: “Unlike most employment settings, athletic teams are gender segregated, and universities must decide beforehand how many athletic opportunities they will allocate to each sex. As a result, determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons.” Id. (emphasis in original).
12

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 13 of 28
id. ¶¶ 52, 53. Both facts are confirmed by FHSAA’s public records.5 Third, FHSAA does not
dispute Plaintiffs’ allegation that cheerleading fails to qualify as a sport under Title IX’s criteria.
See id. ¶ 49.6 Lastly, FHSAA does not dispute that Plaintiffs notified it that new Policy 6
violated Title IX when it chose to proceed with implementing the policy. See id. ¶ 60. This last
point is particularly significant because courts have considered whether “defendants were
already on notice of their potential Title IX violations when they made their [disputed] decision”
in determining if their decisions reflected intentional discrimination. Barrett, 2003 WL
22803477, at *12 (citing Pederson, 213 F.3d 858 at 880).7 All of these uncontested allegations,
several of which FHSAA’s records confirm, increase the likelihood that Plaintiffs will prevail in
proving a Title IX violation.
3. An Overall, Not a Sport-By-Sport, Comparison Is Appropriate
FHSAA urges denial of the preliminary injunction on the grounds that “male and female
athletes are not treated differently under revised Policy 6.” Def.’s Opp’n at 10. This argument is
5 FHSAA’s records confirm its 2002 decision to exempt football from a 10% across-the-board reduction in games. See News Release, FHSAA, Bd. Approves Football Classification Proposal, Subclass in 2A (Nov. 25, 2002), available at http://www.fhsaa.org/news/2002/; compare 2002-03 FHSAA Handbook Policy 4, at 86-98, available at http://www.fhsaa.org/rules/handbook/ with 2003-04 FHSAA Handbook Policy 4, at 54-65, available at http://www.fhsaa.org/rules/handbook/. Although Plaintiffs allege it was a 20% reduction, FHSAA’s records confirm the alleged exemption of football from the 2002 reductions that reduced the number of games from 28 to 25. See Compl. ¶ 52. FHSAA’s records also confirm that the majority of sports in which girls participate receive 15 or fewer weeks and that football receives 23 weeks. See http://www.fhsaa.org/rules/handbook/0809_handbook.pdf, at 96-104; 2008-09 FHSAA Calendar Important Dates, available at http://www.fhsaa.org/calendar/2008_09.htm.
6 FHSAA uses the word “sport” to refer to cheerleading one time, Def.’s Opp’n at 11, but does not deny Plaintiffs’ allegations that OCR has not determined that cheerleading in Florida is a sport under Title IX’s criteria or that the operation of cheerleading in Florida qualifies as a sport under these criteria. See Compl. ¶ 49. Nor has FHSAA presented any evidence that it does.
7 See infra discussion at Section II.A.1 regarding a defendant’s prior knowledge of the consequences of its contemplated actions.
13

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 14 of 28
premised upon a mistaken assumption that compliance with the Title IX obligation to provide equal opportunity with respect to game scheduling requires only that “girls and boys be treated equally on a sport by sport basis with respect to the number of competitive events.” Id. at 11. Defendant cites the 1979 Policy Interpretation and a district court case for this assumption, but neither supports this argument. See id. at 10-11 (citing 44 Fed. Reg. at 71,416 and Landow v. Sch. Bd. of Brevard County, 132 F. Supp.2d 958 (M.D. Fla. 2000)). In Landow, the court compared the boys’ baseball program to the girls’ softball program because the plaintiffs “alleged disparities between” these two sports and “claim[ed] that these disparities violat[ed] [Title IX].” Id. at 959. The court found a Title IX violation in part because of inequities relating to practices and games, id. at 963, but the case did not establish that compliance with 34 C.F.R. § 106.41(c)(3) requires only a sport-by-sport comparison. If anything, because softball and baseball are not the same sport, the court’s analysis in Landow supports looking across sports to evaluate equality.
With respect to the 1979 Policy Interpretation, FHSAA argues that the following sentence requires only a sport-by-sport comparison: “Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) the number of competitive events per sport.” 44 Fed. Reg. at 71,416. While compliance must consider the number of games in a given sport, this does not mean that compliance is achieved as long as the number of games for the female and male teams of the same sport are equivalent, as FHSAA suggests. See Def.’s Opp’n at 11. The fact that new Policy 6 reduces the number of games equally for the sports that have both female and male teams does not end the inquiry. See Compl. Ex. A. Were this not the case, a recipient could privilege any sport that had only a male
14

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 15 of 28
team by scheduling a high number of games while affording sports with only female teams low numbers of games because there would be no sport-by-sport comparison to make across gender lines. The sentence in the 1979 Policy Interpretation invoked by FHSAA did not intend this absurd result.
When read in its entirety, the 1979 Policy Interpretation requires an “overall” comparison of girls’ and boys’ equal athletic opportunities to determine compliance with Title IX. See, e.g., 44 Fed. Reg. at 71,415, 71,416, 71,417, 71,418 (using “overall” throughout).8 Courts accord the 1979 Policy Interpretation substantial deference when evaluating Title IX claims.9 Assessing equality with respect to “Other Athletic Benefits and Opportunities,” id. at 71,415, which include the scheduling of games, id. at 71,416, requires comparing “the availability, quality and kinds of benefits, opportunities, and treatment afforded members of both sexes[,]” and “compliance” demands that “compared program components [be] equivalent, that is, equal or equal in effect.” Id. at 71,415. Though compliance does not require “identical benefits, opportunities, or treatment” with respect to game scheduling, it does require that “the overall effects of any differences [be] negligible.” Id. (emphasis added).
Once the overall game opportunities for both sexes have been compared, and “[o]verall determination of compliance” with 34 C.F.R. § 106.41(c) considers “a. [w]hether the policies of
8 Cf. Dolan v. Postal Service, 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase [in a statute] depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”).
9 See, e.g., Cohen, 991 F.2d at 895, 896-97 (according deference to Department of Education’s interpretation of Title IX, including its 1979 Policy Interpretation); McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 288-90 (2d Cir. 2004) (same); Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir. 2002) (same); Neal, 198 F.3d at 770, 771 (according deference to OCR’s 1996 Clarification and associated letters clarifying athletics requirements).
15

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 16 of 28
an institution are discriminatory in effect; or . . . “c. whether disparities in benefits, . . . opportunities in individual segments of the program are substantial in and of themselves to deny equality of athletic opportunity.” 44 Fed. Reg. at 71,417. Here, there is a strong basis on which to conclude both that new Policy 6 is “discriminatory in language [and] effect” and that it constitutes an overall, “substantial” denial of equal game opportunities on the basis of sex, id., because it exempts an overwhelmingly male sport with the most male participants as well as nearly nine times as many boys as girls from the game reductions. See Compl. ¶¶ 50-51. For these reasons, Plaintiffs have a strong likelihood of succeeding on the merits of their Title IX claim.
4. The Fact that Football and Cheerleading Are Not Single Sex Does Not Negate the Likelihood of Plaintiffs’ Title IX Claim Succeeding
FHSAA argues that the exemptions are gender-neutral because “both sports are open to each gender” and FHSAA’s Bylaws allow girls to join boys’ athletic teams in a sport lacking a girls’ team. Def.’s Opp’n at 11 (citing Handbook, Article 9.6). The fact that football is currently open to girls and included three female participants (i.e., 0.0083% of the 36,101 football players), see Def.’s Mot. to Dismiss at 2, neither negates nor mitigates the “substantial” inequality between the number of boys and girls who are afforded their full game schedule as a result of the football and cheerleading exemptions. See 44 Fed. Reg. at 71,417. The new policy nonetheless denies female athletes equal benefits and treatment by subjecting almost all of them (95% of them) to the policy’s reductions, while exempting 28% of the male athletes from these reductions. See Compl. ¶ 50. Though three girls participated in football across the State, for virtually every school in Florida, the practice is that football is an exclusively male sport. The existence of female football players and male cheerleaders also does not negate FHSAA’s intent
16

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 17 of 28
to discriminate because FHSAA had non-discriminatory choices that it declined even after Plaintiffs notified FHSAA that its new policy would violate Title IX. See Compl. ¶ 60.
While focusing on unpersuasive arguments for denying the preliminary injunction, FHSAA fails to offer any justification for exempting football and cheerleading. II. PLAINTIFFS’ EQUAL PROTECTION CLAIM SHOULD NOT BE DISMISSED
AND HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS FHSAA’s Motion to Dismiss Plaintiffs’ Equal Protection claim should be denied because Plaintiffs adequately allege that FHSAA’s new Policy 6 constitutes intentional discrimination, not just disparate impact discrimination, in violation of the Equal Protection Clause. Plaintiffs’ Equal Protection claim also has a substantial likelihood of success on the merits because FHSAA fails to offer an exceedingly persuasive justification that its asserted goals of consistency in game reductions and financial help to its member schools, even if important, are substantially related to a policy that applies those reductions in an inconsistent and discriminatory way on its face, when both goals could be achieved through a non-discriminatory policy of game scheduling. A. Plaintiffs’ Equal Protection Claim Should Not Be Dismissed The legal standards for evaluating whether a complaint satisfies the requirements of Rule 8(a)(2) to survive a Rule 12(b)(6) motion, which are set forth above, apply equally to Plaintiffs’ Equal Protection claim. Under these standards, Plaintiffs adequately pled an intentional discrimination claim under the Equal Protection Clause. Plaintiffs’ factual allegations demonstrate that new Policy 6 is not gender-neutral, but rather gender-based; therefore, this Court should review it under intermediate scrutiny. Even if this Court were to conclude that FHSAA’s new Policy 6 is gender-neutral, as FHSAA argues, Plaintiffs have alleged sufficient
17

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 18 of 28
facts demonstrating that FHSAA acted with discriminatory intent in adopting new Policy 6. Thus, this Court should deny FHSAA’s Motion to Dismiss Plaintiffs’ Equal Protection claim.
1. Plaintiffs Adequately Pled Intentional Discrimination by FHSAA in Support of Their Equal Protection Claim
FHSAA asserts that Plaintiffs “fail[ed] to allege discriminatory intent in more than a conclusory fashion” and “erroneously relie[d] on allegations of disparate impact for its Equal Protection claim.” Def.’s Mot. to Dismiss at 8. To the contrary, Plaintiffs provided “fair notice” that their claim involves intentional sex discrimination in violation of the Equal Protection Clause. Twombly, 550 U.S. at 555; see Compl. ¶¶ 21, 63-69, 74. For example, paragraph 65 alleges that “by choosing to treat male and female athletes differently and by inequitably reducing the number of competition[s] for females by up to 40%, [FHSAA] intentionally discriminates on the basis of sex and deprives female student-athletes of their rights to equal protection secured by the Fourteenth Amendment.” Id. ¶ 65. These paragraphs, delineating the specific nature of the intentional discrimination, are not mere “threadbare recitals of a cause of action’s elements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009).
FHSAA argues that “the only factual allegations relevant to the Equal Protection claim worthy of consideration” are those in paragraphs 47-53 and that these paragraphs merely allege that new Policy 6's football exemption “has a disparate impact on female athletes.” Def.’s Mot. to Dismiss at 8. For the reasons stated above in Section I.A.2, the allegations stated in these paragraphs, taken as true, plausibly establish intentional discrimination. See Twombly, 550 U.S. at 570. In addition, Paragraph 68 alleges that Plaintiffs notified FHSAA that its new Policy 6 constituted sex discrimination in violation of the Fourteenth Amendment and that FHSAA nonetheless refused to rescind the policy. Compl. ¶ 68. These same factual allegations,
18

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 19 of 28
particularly the notice Plaintiffs gave to FHSAA, also refute FHSAA’s argument that Plaintiffs failed to allege facts showing that FHSAA adopted new Policy 6 “because of its” adverse effect upon females. Def.’s Mot. to Dismiss at 8. This is not a case where the FHSAA “simply realized or otherwise could have guessed” how the football and cheerleading exemptions would affect female student athletes. Pryor v. Nat’l Collegiate Athletic Ass’n (NCAA), 288 F.3d 548, 564 (3rd Cir. 2002) (discussing how these circumstances bear on defendant’s intent). Here, “based on the face of the [C]omplaint and all reasonable inferences thereto,” FHSAA intended to privilege male athletes over female athletes. See id.
In this respect, this case is akin to Pryor, in which the Third Circuit reversed a Rule 12(b)(6) dismissal of plaintiffs’ Title VI and § 1981 claims in so far as they rested on allegations of purposeful discrimination, not deliberate indifference. See id. at 564-67.10 In Pryor, the plaintiffs alleged that the NCAA purposefully discriminated against black students when it adopted Proposition 16 because it already knew as a result of various studies that Proposition 16 would effectively “screen out” or reduce the percentage of black athletes who would qualify for athletic scholarships. Id. at 564. The Third Circuit held that these allegations adequately stated a claim for purposeful discrimination to survive a motion to dismiss. Id. at 565-66. Moreover, like the defendant in Pryor, FHSAA is asking this Court to distinguish between FHSAA’s “‘awareness’ and its ‘purpose’ at the pleading stage, even though issues involving state of mind (e.g., intent) are often unsuitable for a Rule 12(b)(6) motion to dismiss.” Id. at 565; cf. Baum v. Great W. Cities, Inc., 703 F.2d 1197, 1210-11 (10th Cir. 1983) (“Questions of intent, which
10 Title VI’s ban on intentional race-based discrimination is co-extensive with the coverage of the Equal Protection Clause. See Sandoval, 532 U.S. 275 at 307-308, 312 n. 22.
19

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 20 of 28
involve intangible factors including witness credibility, are matters for consideration of the fact finder after a full trial.”).
2. New Policy 6 Is Not Gender-Neutral FHSAA argues that new Policy 6 is gender-neutral because the exempted activities of football and cheerleading are open to members of both sexes, and all other male and female teams of the same sport (e.g., boys’ soccer and girls’ soccer) or similar sports (e.g., baseball and softball) have the same number of games under the policy’s reductions. Def.’s Mot. to Dismiss at 2, 9. FHSAA relies in part on Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), for this argument. Def.’s Mot. to Dismiss at 7-8. Feeney does not support this contention. Feeney established two questions for evaluating whether a statute that is gender-neutral on its face and has an adverse disparate impact on women violates the Equal Protection Clause. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert of [sic] overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. See Arlington Heights v. Metropolitan Housing Dev. Corp., supra. In this second inquiry, impact provides an “important starting point,” 429 U.S., at 266, 97 S.Ct., at 564, but purposeful discrimination is “the condition that offends the Constitution.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554. 442 U.S. at 274. Though new Policy 6 does not use the terms boys and girls on its face, it is indeed gender-based under Feeney’s first question. In Feeney, the challenged statute provided all veterans who qualified for state civil service positions a lifetime preference over nonveterans in consideration of appointments. Id. at 259. In determining that the veteran’s preference was gender-neutral on its face, the Court relied upon two factors that are not present in the current
20

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 21 of 28
case. First, the female plaintiff in Feeney conceded that the statute was neutral on its face. Id. at 274. Second, the Court relied upon the district court’s findings that the preference served legitimate goals and was not enacted in order to discriminate against women. Id. at 274-75. The Court found that almost every state and the federal government granted some type of hiring preference to veterans on the historically accepted justification that such preferences recognize veterans’ sacrifice, ease their transition back to civilian life, and encourage people to serve in the military. Id. at 261, 264-65. Here, the Plaintiffs have not conceded that new Policy 6 is genderneutral. Additionally, unlike in Feeney, there is no evidence that almost every state athletic association privileges football by exempting it from any reductions in playing time that apply to all other sports, nor would there be any legitimate, widely accepted justification for doing so as there was for the veteran preferences.
In addition, the statute in Feeney did not single out a special subset of veterans for an additional preference, but simply gave a hiring preference to all veterans. Had FHSAA subjected all athletes (regardless of their sex) to the 20% varsity and 40% sub-varsity reductions, its policy could perhaps have been treated as gender-neutral on its face, like the veterans preference and the gender-neutral state high school athletic association policy challenged in Horner v. Kentucky High School Athletic Association, 43 F.3d 265 (6th Cir. 1994).11 In Horner, the court held that the policy, which did not sanction a sport unless at least 25% of member schools indicated a willingness to participate, did not violate the Equal Protection Clause because the 25% rule applied to all sports regardless of sex, and the plaintiffs had not shown that
11 This would not necessarily render FHSAA’s conduct compliant with the Equal Protection Clause or Title IX, considering Plaintiffs’ claims of prior and ongoing discrimination by FHSAA against female athletes with respect to a similar football exemption in 2002 and the unequal number of weeks that FHSAA provides to the majority of girls’ sports relative to football. See Compl. ¶¶ 52-53, 58, 67.
21

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 22 of 28
the policy was issued because of its adverse impact on female athletes. Unlike the 25% acrossthe-board sanction rule or the across-the-board veterans preference, new Policy 6 is not genderneutral under Feeney’s first question because FHSAA chose to privilege 36,000 boys by exempting a virtually all male sport (99.99% male) from the reductions without making equitable exemptions for female athletes. See Compl. ¶¶ 48-51. Because this policy is not gender-neutral, the Court should subject it to intermediate scrutiny. See infra Section II.B.
3. Even if this Court Concludes that New Policy 6 Is Gender-Neutral, Plaintiffs Alleged Sufficient Facts Under Feeney’s Second Question
Even if this Court determines that new Policy 6 is gender-neutral under Feeney’s first question, Plaintiffs’ allegations adequately establish that the “adverse effects” of new Policy 6 on girls reflects purposeful discrimination under Feeney’s second question. 442 U.S. at 274. As the Court in Feeney explained, “[i[n this second inquiry, impact provides an ‘important starting point.’” Id. (citation omitted); see Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997) (“the impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions”). Here, the impact of FHSAA’s new Policy 6 is stark. Taking the facts as true, FHSAA exempted almost nine times as many boys as girls (nearly 32,000 more boys) and subjected 95% of female athletes to the cuts, while exempting 28% of male athletes. Compl. ¶¶ 50-51; see Feeney, 442 U.S. at 279 n.25 (“[W]hen the adverse consequences of a law upon an identifiable group are [] inevitable . . . , a strong inference that the adverse effects were desired can reasonably be drawn.”).
To determine whether purposeful discrimination “was a motivating factor [behind this stark impact] demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266
22

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 23 of 28
(1977). “Possible indicia of discriminatory intent include a clear pattern of disparate impact, unexplainable on grounds other than race [or sex]; the historical background of the challenged decision or the specific events leading up to the decision; procedural or substantive departures from the norm; and the legislative or administrative history of the challenged statute.” Parks v. City of Warner Robins, Ga., 43 F.3d 609, 617 (11th Cir. 1995) (analyzing gender-neutral government action under the Equal Protection Clause).
Plaintiffs’ Complaint includes historical allegations, which FHSAA neither denies nor refutes, that reflect FHSAA’s discriminatory purpose. For example, FHSAA exempted football from similar game reductions in 2002 and provides only 15 weeks of games and practices to the majority of girls’ sports while according football 23 weeks, Compl. ¶¶ 52, 53, facts confirmed by their own records.12 By contrast, the historical background in Feeney did not reflect a discriminatory purpose because the definition of “veterans” had always been gender-neutral dating back to 1884 and inclusive of women who had served in the military. 442 U.S. at 265, 275. The veterans preference in Feeney is also distinguishable from new Policy 6 because the former could be fully explained on gender-neutral grounds, while here it is difficult, if not impossible, to explain FHSAA’s exemptions on gender-neutral grounds when FHSAA had the clear option to adopt an equitable policy and was specifically urged by Plaintiffs to do so. See Compl. ¶ 57. Furthermore, the notice FHSAA had that new Policy 6 violated the Equal Protection Clause when FHSAA nonetheless chose to proceed with the policy is demonstrative of purposeful discrimination. This kind of knowledge goes far beyond a mere awareness of the
12 See supra note 5; see also Arlington Heights, 429 U.S. at 267 (“The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes.”).
23

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 24 of 28
consequences of a neutral policy that was insufficient to establish purposeful discrimination in Feeney, 442 U.S. at 277-78, and more closely resembles the alleged knowledge of the defendant in Pryor, 288 F.3d at 565, which was deemed sufficient.13 All of these indicia of discriminatory intent are sufficient to withstand a motion to dismiss.14
B. Plaintiffs’ Equal Protection Claim Likely Will Succeed on the Merits FHSAA opposes the PI Motion with respect to the Equal Protection claim on the basis of the same “disparate impact” argument raised in its Motion to Dismiss. Def.’s Opp’n at 9-10. The Court should reject this argument for the reasons given in Section II.A above. FHSAA also argues that its policy is gender-neutral because football and cheerleading are open to both sexes, and only a sport-by-sport comparison is required. Id. at 10-11. These are the same arguments raised against the Title IX claim, and they should be rejected for the reasons set forth in Sections I.B.3 and I.B.4 above. If this Court rejects these arguments by finding either that new Policy 6 is indeed gender-based under Feeney’s first question or that it reflects purposeful discrimination under Feeney’s second question, the Court should subject new Policy 6 to intermediate scrutiny.
13 The Third Circuit distinguished Feeney from the facts in Pryor noting that: “[A]s shown by the complaint, this is not a case where the NCAA simply realized or otherwise could have guessed that Proposition 16 would have had a disparate impact on black athletes. . . . Rather, this is a case where, based on the face of the complaint and all reasonable inferences thereto, the NCAA at least partially intended to reduce the number of black athletes who could attend college on an athletic scholarship by adopting the heightened academic requirements of Proposition 16. Pryor, 288 F.3d at 564. 14 FHSAA’s argument that “the more appropriate analysis is whether males and females are given the opportunity to play a particular sport,” Def.’s Mot. to Dismiss at 9, lacks support and misapprehends the Equal Protection claim in this case. Plaintiffs are not complaining about female access to a particular sport, but rather a special exemption for 36,000 boys. Compl. ¶ 50.
24

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 25 of 28
In its Opposition, FHSAA fails to establish an “exceedingly persuasive justification” for the gender-based classification inherent in its new Policy 6. United States v. Virginia, 518 U.S. 515, 532-33 (1996). This burden is met only by showing that the classification “serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” Id. at 533 (citation omitted). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id.
FHSAA asserts that it proposed and ultimately adopted new Policy 6 “[i]n an effort to maintain a consistent approach [with respect to reductions in athletics programs] and to assist schools in making difficult decisions regarding financial reductions.” Hester Affidavit ¶ 8; see also id. ¶ 7; Def.’s Opp’n at 4. Even assuming this Court finds that maintaining a consistent approach to reductions is an important objective, there is no substantial relationship between this goal and the new Policy 6 because its football and cheerleading exemptions render what would have been consistent, uniform reductions for all athletes entirely inconsistent. In addition, while helping member schools make difficult choices about financial cuts to their athletics program is arguably an important objective, there is little likelihood that FHSAA will be able to establish a substantial relationship between this goal and new Policy 6 in an exceedingly persuasive manner. This objective could have been achieved in a variety of ways that did not privilege 32,000 more male athletes over female athletes, and FHSAA offers no justification for its choice to exempt football and cheerleading. See, e.g., Compl. ¶ 57.
25

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 26 of 28
In sum, Plaintiffs’ Equal Protection claim is quite likely to satisfy either of Feeney’s questions, and new Policy 6 is unlikely to survive intermediate scrutiny. Consequently, there is a substantial likelihood that Plaintiffs’ Equal Protection challenge will succeed on the merits. III. Plaintiffs Satisfy the Three Remaining Requirements for a Preliminary Injunction
Because Plaintiffs also satisfy the three remaining requirements for a preliminary injunction, see Schiavo, 403 F.3d at 1231, this Court should grant their PI Motion.
A. Plaintiffs Will Suffer Irreparable Harm in the Absence of a Preliminary Injunction
The United States agrees that Plaintiffs’ daughters and female athletes in Florida will be irreparably harmed if this Court does not preliminarily enjoin new Policy 6 prior to deciding this case on the merits. See Pls.’ Mem. in Supp. of PI Mot. at 2, 4, 13-14. Given that schools are already scheduling games subject to the 20% varsity and 40% sub-varsity reductions, these girls will lose the opportunity to compete in up to 40% of their expected contests and the associated benefits of competition, including athletic scholarships, setting records, and developing athletic skills, if new Policy 6 is not enjoined. See id. at 13. Plaintiffs correctly point out that a reduction in contest participation for two school years, as new Policy 6 requires, will significantly deprive girls of their expected junior high and high school experiences, which are limited to roughly six years. See id. at 13-14. Moreover, if this Court issues the preliminary injunction but ultimately rules against Plaintiffs, it still will be possible to eliminate scheduled games to comply with the reductions. By contrast, if the Court denies the PI Motion, but Plaintiffs later prevail after the athletic seasons start, it will be difficult, if not impossible, to insert additional games into existing schedules. See Pls.’ PI Motion at 3.
26

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 27 of 28
Based on similar allegations of irreparable harm, courts have issued preliminary injunctions in Title IX athletics cases. See, e.g., Cohen, 991 F.2d at 904-905; Barrett, 2003 WL 22803477, at *13-14; Favia, 812 F. Supp. at 583-84. The United States urges this Court to follow this precedent and to reject FHSAA’s baseless argument that the impact of new Policy 6 is the same harm that equally impacts girls and boys alike throughout Florida, see Def.’s Opp’n at 11, in light of the grossly unequal numbers of boys and girls exempted under new Policy 6.
B. The Threatened Injury Outweighs the Potential Harm to FHSAA The United States agrees with Plaintiffs that the harm to them outweighs the potential harm to FHSAA because the association can achieve the same goal of scheduling fewer games by simply having their member schools do so equitably. FHSAA’s argument that a “chaotic” athletic system will ensue if the injunction is issued lacks support. Def.’s Opp’n at 12. If former Policy 6's maximum numbers of games were maintained this year, schools could still address their financial difficulties by scheduling fewer games or taking other cost-saving measures. Issuing the preliminary injunction would assist member schools by giving FHSAA the impetus to develop policies that conform to federal law and that assist member schools to comply as well. C. The Public Interest Will Be Served by the Preliminary Injunction Promoting compliance with Title IX and preventing a violation of constitutional rights clearly serve the public interest. See Barrett, 2003 WL 22803477, at *15 (“Promoting compliance with Title IX serves the public interest.”); Favia, 812 F. Supp at 585 (“The public has a strong interest in prevention of any violation of constitutional rights.”); Cohen v. Brown Univ., 809 F. Supp. 978, 1001 (D.R.I. 1992) (“[T]he public interest will be served by vindicating a legal interest that Congress has determined to be an important one.”). FHSAA claims that the
27

Case 3:09-cv-00547-TJC-HTS Document 28-2 Filed 07/14/2009 Page 28 of 28

public interest is served by allowing it to address the financial crisis in Florida’s educational

system. Def.’s Opp’n at 12. While the autonomy of FHSAA is important, “the public interest

demands that [FHSAA] comply with federal law.” See Barrett, 2003 WL 22803477, at *15

(rejecting similar “autonomy” argument). Certainly the public interest would not be served if all

the member schools in Florida proceeded to operate their athletic programs in violation of

federal law based on the issuance of new Policy 6.

Conclusion

For the above stated reasons, the Court should deny FHSAA’s Motion to Dismiss and

grant Plaintiffs’ Motion for Preliminary Injunction.

Respectfully submitted,

/s/ Emily McCarthy

LORETTA KING

Acting Assistant Attorney General

Civil Rights Division

AMY I. BERMAN

EMILY MCCARTHY (D.C. Bar. 463447)

IRIS GOLDSCHMIDT (D.C. Bar. 435491)

.

Educational Opportunities Section

Civil Rights Division

United States Department of Justice

950 Pennsylvania Ave., NW

Patrick Henry Building, Suite 4300

Washington, D.C. 20530

Tel: (202) 514-4092

Fax: (202) 514-8337

iris.goldschmidt@usdoj.gov

emily.mccarthy@usdoj.gov

Dated: July 14, 2009

28

 
 'r
Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 1 of 24 PageID 1
FILED

IN THE UNITED STATES D,&'IlUf;;J CQURT
FOR THE MIDDLE DISTRlClJ1I~F-..pili~A3: 5 J

JACKSONVILLE D~r~~19~fr5!;::J~T rnl':::r

SILVANA COOK, on behalf of her minor

)~: ~'''~, ~3,t.tD~t4v.'~LVlff"'l~

daughter; SHARI ROBINSON, on behalf of ) her minor daughter; ERNESTINE BRE\VER, )

;= 'I
g ~':~

on behalf of her minor daughter;

)

SCOTT PIRIE, on behalf of his minor daughter; )

GRETCHEN GOODLET, on behalf of her

)

minor daughters; OMAR PASOLODOS, on )

behalf of his minor daughter;

)

:" '
"

"'."'~,.J":

7 :',:"7

-..&:>
" ~

:-\ c - I;:,-,~',.':"

r:. ".: ~ u

--rmn
CJ

)

Plaintiffs.

)

)

(. '-"·-:n::> W.. -OJ U1
~ .:..:--1

v.

)

)

FLORIDA HIGH SCHOOL ATHLETIC

)

ASSOCIA TION,

)

)

Defendant.

)

)

COMPLAINT; INJUNCTIVE RELIEF SOUGHT; AND DEMAND FOR JURY TRIAL

Plaintiffs SILVANA COOK, SHARI ROBINSON, ERNESTINE BREWER,

GRETCHEN GOODLET, and OMAR PASOLODOS, on behalf of their minor daughters

(collectively, "Plaintiffs"), hereby file this action against the defendant Florida High

School Athletic Association ("FHSAA" or "Defendant").

STATEl\IENT OF THE CASE

l. Plaintiffs bring this action to challenge the legality of Policy 6 of the

Florida High School Athletic Association Handbook. The newly amended policy reduces

the athletic schedules of all high school sports except boys' football (and ostensibly

competitive

cheerleading)

(hereinafter

"Policy

61f ).

1

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 2 of 24 PageID 2
2. Plaintiffs contend that the new Policy 6 inequitably burdens girls and constitutes sex discrimination in violation of (1) Title IX of the Education Amendments of 1972 (20 U.S.c. §1681 et seq.), (2) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (as enforced through 42 U.S.C. §1983), and (3) the Florida Educational Equity Act (§1000.05, F.S.).
3. Plaintiffs bring these claims on behalf of their minor daughters, female student-athletes at FHSAA member schools whose athletic schedules have been or will be cut by Policy 6. Plaintiffs in this action also indirectly represent the interests of the vast majority of Florida High School females, whose right to participate in interscholastic athletic competitions as part of their education has been discriminated against as a result of the aforesaid regulation, which intentionally denies female High School students equal treatment and benefits that must necessarily accompany an equal opportunity to participate. As more specifically set out hereinafter, each Plaintiff is affected by Policy 6 and has standing to bring this action.
4. Plaintiffs seek to obtain the following relief: (1) a declaratory judgment stating that FHSAA's Policy 6 constitutes illegal sex discrimination in violation of the above-referenced laws, (2) preliminary and permanent injunctions to prevent implementation of the new Policy 6 and any other scheduling cuts that inequitably burden one sex over another, (3) monetary damages to be proven at trial, (4) attorneys' fees and costs, and (5) any other remedies available at law.
2

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 3 of 24 PageID 3
JURISDICTION AND VENUE 5. The first claim arises under 20 U.S.c. § 1681, et seq. and its interpreting regulations. Jurisdiction is conferred on this court by 28 U.S.c. §§1331, 1343(3), and 1343(4). 6. The second claim also arises under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as enforced through 42 U.S.C § 1983. Jurisdiction is conferred on this court by 28 U.S.C §§ 1331, 1343(3), and 1343(4). 7. The third claim arises under the Florida Educational Equity Act of Florida state law (§ 1000.05, F.S.). Supplemental jurisdiction is conferred on this Court by 28 U.S.C §1367(a). 8. The fourth claim arises under the Florida Sunshine Law of Florida state law (§286.011, F.S.). Supplemental jurisdiction is conferred on this Court by 28 U.S.C § 1367(a).
9. Jurisdiction for declaratory and other relief is invoked pursuant to 28
U.S.C §§2201 and 2202. 10. Venue is proper pursuant to 28 U.S.c. §1391(b). These claims arose in
the State of Florida, including the area within the jurisdiction of this Court. THE PARTIES
II. Plaintiff SILVANA COOK is the parent of a female student-athlete who attends Andrew Jackson High School, a FHSAA member school, located in Jacksonville, Florida, which is with in the jurisdiction of this Court. Her daughter participates in
3

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 4 of 24 PageID 4
interscholastic athletics and thus is subject to and will be hanned by the reduction in her athletic schedules mandated by Policy 6. Both SILVANA COOK and her daughter are residents of Jacksonville, Florida, which is within the jurisdiction of this Court.
12. Plaintiff SHARI ROBINSON is the parent of a female student-athlete who attends .lean Ribault High School, a FHSAA member school, located in Jacksonville, Florida, which is with in the jurisdiction of this Court. Her daughter participates in interscholastic athletics and thus is subject to and will be hanned by the reduction in her athletic schedules mandated by Policy 6. Both SHARI ROBINSON and her daughter are residents of Jacksonville, Florida, which is within the jurisdiction of this Court.
13. Plaintiff ERNESTINE BREWER is the parent of a female student-athlete who attends Jean Ribault High School, a FHSAA member school, located in Jacksonville, Florida, which is with in the jurisdiction of this Court. Her daughter participates in interscholastic athletics and thus is subject to and will be hanned by the reduction in her athletic schedules mandated by Policy 6. Both ERNESTINE BREWER and her daughter are residents of Jacksonville, Florida, which is within the jurisdiction of this Court.
14. Plaintiff SCOTT PIRIE is the parent of a female student-athlete who attends Clay High School, a FHSAA member school, located in Green Cove Springs, Florida, which is with in the jurisdiction of this Court. His daughter participates in interscholastic athletics and thus is subject to and will be hanned by the reduction in her athletic schedules mandated by Policy 6. Both SCOTT PIRIE and his daughter are residents of Green Cove Springs, Florida, which is within the jurisdiction of this Court.
4

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 5 of 24 PageID 5
15. Plaintiff GRETCHEN GOODLET is the parent of three (3) female student-athletes, two (2) of whom attend Gaither High School, and one (l) of whom attends Ben Hill Middle School, all FHSAA member schools, located in Tampa, Florida, which is within the jurisdiction of the Middle District of Florida court. Her daughters have participated in and/or intend to participate in interscholastic athletics and thus are subject to and will be hanned by the reduction in their athletic schedules mandated by Policy 6. Both GRETCHEN GOODLET and her daughters are residents of Tampa, Florida, which is within the jurisdiction of Middle District of Florida court.
16. Plainti ff OMAR PASOLODOS is the parent of a female student-athlete who attends Gulliver Prep, a FHSAA member school, located in Miami, Florida. His daughter participates in interscholastic athletics and has thus will be subject to and will be hanned by the reduction in her athletic schedules mandated by Policy 6. Both OMAR PASOLODOS and his daughter are residents of Miami, Florida.
17. Defendant FHSAA holds itself out to the public as a Florida not-for-profit corporation with its principal place of business located at 1801 NW 80th Blvd.; Gainesville, Alachua County, Florida 32606.
18. Defendant FHSAA conducts business within the jurisdiction of this court III that among other things, (l) it holds annual Board of Directors' meetings III Jacksonville, Florida, (2) it governs and is governed by member schools located III Jacksonville and the Middle District, and (3) it receives payment from Jacksonville and Nliddle District member schools consisting of membership dues and expenses, gate receipts, and advertising monies.
5

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 6 of 24 PageID 6
19. Defendant FHSAA was created by §10006.20, F.S., to function "as the
official governing body for interscholastic athletics in Florida." Www.Olsaa.org. The
statute states:
The Florida High School Athletic Association is designated as the governing nonprofit organization of athletics in Florida public schools. If the Florida High School Athletic Association fails to meet the provisions of this section, the commissioner shall designate a nonprofit organization to govern athletics with the approval of the State Board of Education. The organization is not to be a state agency as defined in S. 120.52. The organization shall be subject to the provisions of S. 1006.19. A private school that wishes to engage in high school athletic competition with a public high school may become a member of the organization. The bylaws of the organization are to be the rules by which high school athletic programs in its member schools, and the students who participate in them, are governed, unless otherwise specifically provided by statute. For purposes of this section, ""high school" includes grades 6 through 12.
*10006.20, F.S.
20. All public middle (junior high) and high schools in the state of Florida
who engage in interscholastic athletic competition are by law members of FHSAA and
arc subject to its rules as if those rules were state statutes. Certain private schools in the
state of Florida who engage in interscholastic athletic competition are members of
FHSAA and are subject to its rules as if those rules were state statutes.
21. FHSAA is a state actor for purposes of 42 U.S.c. § 1983 and thus must
comply with and is subject to liability for violating the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
22. FHSAA is governed by a ruling council, the Board of Directors, elected by the member schools. All members of the ruling council are and must be employees of FHSAA member schools. The member schools thus delegate and assign authority to the
6

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 7 of 24 PageID 7
FHSAA to govern, regulate, operate, and control interscholastic athletics in the state of Florida. Defendant FHSAA is an amalgamation of all school districts' athletic interests in the State of Florida. Member schools have combined to create an entity to represent the interests of its members in the operation of athletic programming, thereby delegating their authority to the FHSAA. The FHSAA, through this ruling council, voted to enact the scheduling reductions of Policy 6 which are the subject of this action.
23. On information and belief, FHSAA governs, regulates, operates, and controls interscholastic athletics for all public schools in the state of Florida under the authority and approval of, and as the agent of, the Florida Department of Education ("FDOE").
24. On infonnation and belief, the FHSAA and all of its member schools receive federal and state financial assistance either directly or indirectly.
25. Because FOE, FHSAA, and member schools receive federal financial assistance (directly or indirectly); because FHSAA governs, regulates, operates, and controls an educational activity that receives federal financial assistance (i.e.. interscholastic athletics); and because the member schools delegate and assign the authority to do so to FHSAA, FHSAA and its member schools are subject to and must comply with Title IX.
26. On infonnation and belief, FHSAA and its member schools receive financial assistance and benefits from the State of Florida. Therefore, all programs and activities of FHSAA and its member schools, including athletics, are subject to the requirements of the Florida Educational Equity Act (§ 1000.05, F. S.).
7

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 8 of 24 PageID 8
GENERAL ALLEGATIONS THE REQUIREMENTS OF TITLE IX 27. Title IX, enacted in 1972, provides in relevant part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... 20 U.S.C'. § 1681 (a). 28. The Civil Rights Restoration Act of 1987 (20 U.S.c. §1687) made Congress' intent plain that "program or activity," as used in Title IX, applies to any program or activity so long as any part of the institution receives federal financial assistance. It extends Title IX beyond schools to all entities that operate covered educational programs. It also extends coverage to all entities created by or delegated/assigned the authority of covered entities to operate covered programs. In particular, it states: For purposes of this chapter, the tenn "program or activity" and "program" mean all of the operations of (l )(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or (8) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(A) a college, university, or other post-secondary institution, or a public system of higher education; or (8) a local educational agency (as defined in Section 7801 of this title), system of vocational education, or other school system;
8

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 9 of 24 PageID 9
(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship --
(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assistance, except that such term does not include any operation of an entity which is controlled by a religious organization if the application of section 1681 of this title to such operation would not be consistent with the religious tenets of such organization. Thus, Title IX applies to the Defendant's programs and activities when it operates Florida's interscholastic athletic programs, and each of its member schools, even if the
Defendant or the athletic programs themselves do not directly receive federal financial
assistance. 29. The United States Department of Health, Education and Welfare
("HEW"), the predecessor of the United States Department of Education ("DOE"), adopted regulations interpreting Title IX in 1975. These regulations are codified at 34 C.F.R. Part 106 (the" 1975 Regulations").
30. The 1975 Regulations make clear that Title IX applies to both direct and indirect recipients of federal funds and to the agents and assignees of such recipients:
Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person,
9

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 10 of 24 PageID 10
to whom Federal financial assistance is extended directly or through another recipielll and which operates an education program or activity which receives or benefits from such assistance, including any subunit, success, assignee, or transferee thereof. 34 CF.R. §106.2(h). 31. Under the 1975 Regulations, federal financial assistance includes more than just money. Among other things, the Regulations define such assistance as: (I) A grant or loan of Federal financial assistance... (2) A grant of Federal real or personal property or any interest
therein .... (3) Provision of the services of Federal personnel. (4) Sale or lease of Federal property or any interest therein at nominal
consideration ... (5) Any other contract, agreement, or arrangement which has as one of
its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty. 34 CF.R. §106.2(g). 32. The 1975 Regulations also provide that interscholastic athletics are includcd within the requirements of Title IX: No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and the recipient shall provide any such athletics separately on such basis. 34 CF.R. §106.41 (a). 33. Regulation 34 C.F.R. §106.41 (c) specifies ten (10) factors considered in the detern1ination of equal athletic opportunity:
10

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 11 of 24 PageID 11
I. Whether the selection of sports and levels of competItIon effectively accommodate the interests and abilities of members of both sexes;
2. The provision of equipment and supplies; 3. Scheduling of games and practice time; 4. Travel and per diem allowance; 5. Opportunity to receive coaching and academic tutoring; 6. Assignment and compensation of coaches and tutors; 7. Provision of locker rooms, practice and competitive facilities; 8. Provision of medical and training services; 9. Provision of housing and dining facilities and services; and 10. Publicity. (Emphasis Added). Another factor considered is a school's "failure to provide necessary funds for tcams for one sex." Id. 34. In 1979, the Office of Civil Rights of HEW ("OCR") issued a policy interpretation of Title IX and the Regulations. This policy interpretation is found at 44 Federal Register 71,413 (1979) (the" 1979 Policy Interpretation"). 35. The principles set forth in the 1979 Policy Interpretation, as set forth herein. arc applicable to the interscholastic sports governed by Defendant FHSAA:
This Policy Interpretation is designed specifically for intercollegiate athletics. However, its general principles will often apply to club, intramural, and interscholastic programs, which are also covered by the regulation. 44 Fed. Reg. at 41413. See also 44 Fed. Reg. at 41415 (8)(1).
11

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 12 of 24 PageID 12
36. The 1979 Policy Interpretation provides additional clarification on the requirements of Title IX and 34 C.F.R. §106.41(c) and the mandate that recipients must provide equal athletic opportunities in three general areas: (1) scholarships, (2) participation opportunities, and (3) treatment and benefits. 44 Fed. Reg. at 71415-71419.
37. This case involves equal treatment and benefits, specifically, the scheduling of games and practice times. 34 C.F.R. §106.41(c)(3).
38. The 1979 Policy Interpretation provides guidance regarding the meaning of equity in the scheduling of games and practice times. It states:
Scheduling of Games and Practice Times; Compliance will be assessed by examining, among other factors, the equivalence for men and women of: ( I) the number of competitive events per sport; (2) the number and length of practice opportunities; (3) the time of day competitive events are scheduled; (4) the time of day practice opportunities are scheduled; and (5) the opportunities to engage in available pre-season and postseason competition. 44 F.R. at 71,116. (Emphasis Added). 39. The 1975 Regulations require that sponsors of interscholastic athletics (such as FHSAA and its members) take such remedial actions as are necessary to overcome the effects of sex discrimination in violation of Title IX. See 34 C.F.R. §106.3(a). Instead of taking actions to remcdiatc sex discrimination, FHSAA's changes to Policy 6 cause additional discrimination by inequitably reducing the number of girls' competitions.
12

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 13 of 24 PageID 13
THE U.S. CONSTITUTION
40. The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution mandates that "No State ... shall deny to any person within its
jurisdiction the equal protection of the law."
41. The Fourteenth Amendment is enforceable against those who act under
color of law (i.e. state actors) under 42 U.S.c. §1983.
42. As detailed herein, on information and belief, FHSAA and its member
schools are "state actors" for purposes of enforcing the Fourteenth Amendment.
43. Under 42 U.S.c. §1983, Defendant may be held liable for its action in
violating Plaintiffs' rights under the Fourteenth Amendment.
FLORIDA STATE LA\V
44. The Florida Educational Equity Act, §1000.05, F.S., states in relevant part:
(I) This section may be cited as the Florida Educational Equity Act.
(2)(a) Discrimination on the basis of race, ethnicity, national origin, gender, disability, or marital status against a student or an employee in the state system of public K-2 education is prohibited. No person in this state shall, on the basis of race, ethnicity, national origin, gender, disability, or marital status, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any public K-20 education program or activity, or in any employment conditions or practices, conducted by a public educational institution that receives or benefits from federal or state financial assistance.
* * * *
3)(a) No person shall, on the basis of gender, be excluded from participating in, be denied the benefits of, or be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club, or intramural athletics offered by a public K-20 educational institution; and no public K-20 educational institution shall provide athletics separately on such basis.
13

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 14 of 24 PageID 14
(3)(d) A public K-20 educational institution which operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal athletic opportunity for members of both genders.
I. Thc Board of Governors shall determine whether equal opportunities are available at state universities.
2. The Commissioner of Education shall detemline whether equal opportunities are available in school districts and community colleges. In detemlining whether equal opportunities are available in school districts and community colleges, the Commissioner of Education shall consider, among other factors:
a. Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both genders.
b. The provision of equipment and supplies.
c. Scheduling of games and practice times.
d. Travel and per diem allowances.
c. Opportunities to receive coaching and academic tutoring.
f. Assignment and compensation of coaches and tutors.
g. Provision of locker room, practice, and competitive facilities;
h. Provision of medical and training facilities and services.
1. Provision of housing and dining facilities and services.
J. Publicity.
Unequal aggregate expenditures for members of each gender or unequal expenditures for male and female teams if a public school or community college operates or sponsors separate teams do not constitute nonimplementation of this subsection, but the Commissioner of Education shall consider the failure to provide necessary funds for teams for one gender in assessing equality of opportunity for members of each gender.
* * * *
14

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 15 of 24 PageID 15
(7) A person aggrieved by a violation of this section or a violation of a rule adopted under this section has a right of action for such equitable relief as the court may determine. The court may also award reasonable attorney's fees and court costs to a prevailing party. (Emphasis Added).
INJUNCTIVE RELIEF 45. Plaintiffs are entitled to injunctive relief to prevent Defendant from implementing its discriminatory scheduling scheme under new Policy 6. Failure to grant the injunctive relief requested will result in irreparable harm in that it will forever deny Plainti ffs equal treatment and an equal opportunity to compete in interscholastic athletics. Plaintiffs do not have an adequate remedy at law for this harm. This threatened harm far outweighs any possible harm that granting injunctive relief might cause Defendant or its member schools. The injunctive relief sought would promote the public interest because it would prevent discrimination based on gender and would promote full equality before the law.
ATTORNEYS' FEES 46. Plaintiffs have been required to retain the undersigned attorneys to prosecute this action. Plaintiffs are entitled to recover reasonable attorneys' fees pursuant to 42 U.S.c. §1988 and. §1000.05, F.S.
FACTS 47. Policy 6 defines the length of interscholastic athletic seasons and limits the number of competitions that a school can schedule for each sport. In particular, it states in part, "The following guidelines shall govern season limitations, contest limitations, and
15

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 16 of 24 PageID 16
individual student limitations for all member schools participating in FHSAA-sponsored sports."
48. On or about April 27, 2009, FHSAA promulgated an amendment to Policy 6 that reduces the maximum number of competitions that a school can schedule by 20% for varsity teams and 40% for sub-varsity teams. However, the new Policy 6 expressly excludes boys' football, the sport in which the most boys participate, from the reductions. A copy of the new Policy 6 is attached hereto as Exhibit A.
49. Although the new Policy 6 ostensibly exempts competitive cheerleading, the OCR has refused to certify cheerleading as a sport for purposes of Title IX in the state of Florida. Moreover, on information and belief, neither FHSAA nor its member schools operate competitive cheerleading in a manner that would qualify it as a varsity, competitive sport under established DOE guidelines. The FDOE has not conducted an independent investigation or analysis to examine whether competitive cheerleading qualifies as a sport as currently operated by Defendant FHSAA, and instead has merely accepted Defendant's assertions that it docs comply.
50. According to FHSAA participation records, 131,247 boys and 95,741 girls participated in interscholastic athletics in Florida during the 2007-2008 school year. Of these. 36,10 I boys participated on 534 varsity football teams. The FHSAA also reported that 4,310 girls and 20 I boys participated in competitive cheerleading. Thus, even if competitive checrleading were a sport for purposes of Title IX, FHSAA's new Policy 6 exempts nearly 32,000 more boys than girls from its new competition reductions.
16

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 17 of 24 PageID 17
51. New Policy 6 discriminates against girls by subjecting almost all of them but only some boys to its reductions. It expressly exempts the male sport with the most participants, football. Even if competitive cheerleading were recognized as a sport for purposes of Title IX, and even if FHSAA and its member schools actually conducted it as a sport, new Policy 6 exempts nearly nine times as many boys than girls, nearly 32,000 male athletes from reductions in their competition schedule.
52. On information and belief, this is the second time in less than ten (10) years that FMSAA has discriminated against female athletes in this way. In 2002, FHSAA also cut the number of interscholastic competition opportunities by 20% in all sports except boys' football, reducing the number of games from 28 to 25.
53. Further, Defendant FHSAA sanctions football for 19 weeks during the fall season, and an additional 4 weeks during the spring season, for a total of 23 weeks of coaching, practices and competitions for football players. Meanwhile the majority of girls' sp0l1S operate just 15 weeks during one season, with no additional off-seasons to receive coaching, practice times or competitions allowed, for a total ofjust 15 weeks.
FIRST CLAIM FOR RELIEF: TITLE IX (Inequitable scheduling of games}
54. Plaintiffs re-allege and incorporate herein by this reference paragraphs 1 through 53 inclusive of this Complaint.
55. Title IX prohibits sex discrimination 111 the scheduling of athletic competitions, including the number of athletic contests.
17

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 18 of 24 PageID 18
56. Defendant's new Policy 6 reduces the maximum number of scheduled contests by 20% for varsity teams and 40% for sub-varsity teams. However, by exempting boys' football from this reduction, FHSAA discriminates on the basis of sex in violation of Title IX.
57 Defendant's failure to apply its new Policy 6 to all male and female sports uniformly or to exempt an equitable number of female athletes from its restrictions constitutes sex discrimination in violation of Title IX. Defendant's new Policy 6 essentially separates out boys' football players as a special, privileged class of athletes.
58. Plaintiffs' daughters will be hamled by Defendant's conduct because they will forever lose the opportunity to compete in the up to 40% of their expected contests. In other words, their already-shortened interscholastic athletic opportunities additionally will be cut by up to 40%.
59. Plaintiffs seek to enjoin Defendant from implementing this new Policy 6 or to require that it be implemented in an equitable manner.
60. Plaintiffs notified Defendant that its new Policy 6 inequitably harms girls and constitutes sex discrimination in violation of Title IX. Plaintiffs asked Defendant not to go forward with the new Policy 6, but Defendant refused.
61. The unequal, disparate treatment of female athletes, as detailcd above, demonstrates Defendant's intentional and conscious decision to discriminate on the basis of sex and to not comply with its Titlc IX obligations.
18

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 19 of 24 PageID 19
SECOND CLAIM FOR RELIEF: EQUAL PROTECTION 62. Plaintiffs re-allege and incorporate herein by this reference paragraphs I through 61 inclusive of this Complaint. 63. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates that "No state shall... deny to any person within its jurisdiction the equal protection of the law." 64. The Amendment is enforceable through 42 U.S.C. § 1983 provides, in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 65. Defendant, by choosing to treat male and female athletes differently and by inequitably reducing the number of competition for females by up to 40%, intentionally discriminates on the basis of sex and deprives female student-athletes of their rights to equal protection secured by the Fourteenth Amendment to the United States Constitution, as enforced through 42 U.S.c. § 1983. 66. As detailed herein, when Defendant engaged 111 the improper actions described above, it acted under color of law for purposes of the Equal Protection Clause and 42 U.S.c. § 1983. 67. Plaintiffs' daughters will be harmed by Defendant's conduct because they will forever lose the opportunity to compete in the up to 40% of their expected contests.
19

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 20 of 24 PageID 20
In other words, their already-shortened interscholastic athletic opportunities additionally ,,"ill be cut by up to 40%.
68. Plaintiffs notified Defendant that its new Policy 6 inequitably harms girls and constitutes sex discrimination in violation of the Fourteenth Amendment. Plaintiffs asked Defendant not to go forward with the new Policy 6, but Defendant refused.
69. The unequal, disparate treatment of female athletes, as detailed above, demonstrates Defendant's intentional and conscious decision to discriminate on the basis of sex and to not comply with its constitutional obligations.
THIRD CLAIM FOR RELIEF: FLORIDA STATE LA\V 70. Plaintiffs re-allege and incorporate herein by this reference paragraphs 1 through 69 inclusive of this Complaint. 71. As set forth above, the Florida Educational Equity Act, §1000.05, F.S., bars sex discrimination in interscholastic athletics. 72. Through the conduct described above, Defendant FHSAA has intentionally discriminated against Plaintiffs in the provision of interscholastic athletic programs in Florida schools, in violation of state law. 73. Plaintiffs' daughters will be harmed by Defendant's conduct because they will forever lose the opportunity to compete in the up to 40% of their expected contests. In other words, their already-shortened interscholastic athletic opportunities additionally will be Cllt by up to 40%.
20

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 21 of 24 PageID 21
74. Plaintiffs notified Defendant that its new Policy 6 inequitably harms girls and constitutes sex discrimination in violation of the Fourteenth Amendment. Plaintiffs asked Defendant not to go forward with the new Policy 6, but Defendant refused.
75. The unequal, disparate treatment of female athletes, as detailed above, demonstrates Defendant's intentional and conscious decision to discriminate on the basis of sex and to not comply with its state law obligations.
FOURTH CLAIM FOR RELIEF: FLORIDA STATE LA\V (Violation of Sunshine Law)
76. Plaintiffs re-allege and incorporate herein by this reference paragraphs I through 75 inclusive of this Complaint.
77. Defendant FHSAA is required to comply with the requirements of Florida's Sunshine Law, §286.011, F.S.
78. On June 3, 2009, FHSAA received a letter from Plaintiffs' counsel advising that new Policy 6 violates Tile IX and the Florida Educational Equity Act.
79. On June 5, 2009, the FHSAA Board of Directions was scheduled to discuss rescission or modification of the new Policy 6. The discussion was scheduled on the agenda as action items requested by Board members.
80. In fact, just prior to the start of the meeting, Plaintiffs' counsel was advised by Defendant's counsel when the consideration of new Policy 6 would occur and that it was at this point that Plaintiffs' counsel would be provided an opportunity to address the FHSAA Board regarding new Policy 6.
21

' . " Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 22 of 24 PageID 22
81. On June 5, 2005 at approximately II :45 a.m., the FHSAA Board meeting was suspended by FHSAA Executive Director Roger Dearing purportedly to allow the Board members to check out of their hotel room.
82. However, on information and belief, during this break a secret, non-open meeting occurred with Roger Dearing and more than one Board member, a meeting in violation of §286.0 11, F.S., in which it was decided that a motion would be made, seconded, and voted on tabling the agendaed reconsideration of new Policy 6 until the next meeting of the FHSAA Board in September 2009.
83. When the FHSAA Board reconvened after this break, it was moved. seconded and passed that the reconsideration of Policy 6, including the rescission of new Policy 6, would be tabled until the September 2009 meeting of the FHSAA Board.
84. Pursuant to §286.0 II (l), F.S., Defendant's action in tabling the rescission of new Policy 6 is not binding as it is was decided in violation of Florida's Sunshine Law.
RELIEF REQUESTED \VHEREFORE. on all claims stated herein, Plaintiffs respectfully pray that this Court: A. Enter a declaratory judgment stating that FHSAA's new Policy 6
constitutes illegal sex discrimination in violation of the above-referenced laws;
22

· ,~ " Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 23 of 24 PageID 23
B. Enter preliminary and permanent injunctions restraining Defendant from implementing its new Policy 6 and any other scheduling cuts that inequitably burden one sex over another;
C Grant an expedited hearing and ruling on the preliminary injunction rcquested in B above;
D. Enter an Order declaring that Defendant violated Florida's Sunshine Law, §286.011, F.S., on June 5, 2009;
E. Award the named Plaintiffs monetary relief as permitted by Title IX, 42 U.S.c. § I983, Florida state law, and other applicable law;
F. Award Plaintiffs their reasonable attorneys' fees and costs; G. Order such other and further relief as the Court deems appropriate; and H. Trial by jury. Datcd: June 16,2009
Respectfully submitted by: TERRELL HOGAN
142460) BN: 393932) 233 East Bay Street, Suite 804 Jacksonville, FL 32202 (904) 632-2424 (904) 353-4418 (fax) hogan@terrellhogan.com 19o))er@terrellhogan.com TRIAL COUNSEL -and-
23

Case 3:09-cv-00547-TJC-HTS Document 1 Filed 06/16/09 Page 24 of 24 PageID 24
NANCY HOGSHEAD-MAKAR FBN: 129021) Florida Coastal School of Law 8787 Baypine Road Jacksonville, Florida 32256 (904) 680-7784 (904) 680-7771 (fax) nhogsheadrw.fcsl.cdu -andDAVID BARON (FBN: 297089) Baron & Herskowitz 9100 S. Dadeland Blvd., Suite 1704 Miami, FL 33156 (305) 670-010 I (305) 670-2393 (fax) David{@,bhfloridalaw.com
24

 
 Case 3:09-cv-00547-TJC-HTS Document 42 Filed 07/16/09 Page 1 of 2 PageID 401

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SILVANA COOK, etc., et al.,
Plaintiffs, vs.
FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION,
Defendant.

Case No. 3:09-cv-547-J-32HTS

ORDER This case came before the Court today for a telephone status conference, the record of which is inc orporated by reference. As announced on the record at the hearing, the parties are in agreement that, in light of the action by the Board of Directors of the Florida High School Athletic Association at its meeting yesterday (which action will be memorialized for the record later today by a f iling from defendant), plaintiffs’ motion for preliminary injunction (Doc. 13) is MOOT (as is plaintiffs’ motion for wa iver of security, Doc. 11); the hearing on the motion previously set for tomorrow is now cancelled. Absent further Order, the follow schedule will govern these proceedings: no later than July 31, 2009, plaintiffs shall either file a response to defendant’s motion to dismiss (Doc. 22) or shall file an amended complaint. If pl aintiffs file an amended complaint, defendant shall respond to the amended complaint no lat er than August 21, 2009. If defendant’s response to the amended complaint is a motion to dismiss, plaintiffs and the amicus shall

Case 3:09-cv-00547-TJC-HTS Document 42 Filed 07/16/09 Page 2 of 2 PageID 402
file their responses to the motion to dismiss no later than September 4, 2009.1 Until further notice, the parties are relie ved of the requirement to file a Case
Management Report. DONE AND ORDERED at Jacksonville, Florida this 16th day of July, 2009.
s. Copies: counsel of record
1If the parties find that their discussions would be aided by an extension of any of these deadlines, the Court would be amenable to adjusting the schedule.
2

 
 Case 3:09-cv-00547-TJC-HTS Document 47 Filed 10/21/09 Page 1 of 1 PageID 422

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

SILVANA COOK, etc., et al.,

Plaintiffs,

vs.

Case No. 3:09-cv-547-J-32HTS

FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION,

Defendant.

ORDER This case is before the Cour t on the parties’ Agreed Motion for Dismissal and for Court to Retain Jurisdiction (Doc. 46). Upon review, it is hereby ORDERED: 1. The parties’ Motion ( Doc. 46) is GRANTED and this action is DISMISSED WITHOUT PREJUDICE with each party to bear its own attorneys’ fees and costs except as otherwise provided in the parties’written Settlement Agreement (filed as Exhibit A in support of the Motion). 2. The Court retains jurisdiction until December 31, 2010 to enforce the terms and conditions of the Settlement Agreement. 3. The Clerk shall close the file, subject to reopening upon motion by any party. DONE AND ORDERED at Jacksonville, Florida this 21st day of October, 2009.

s. Copies to: Counsel of Record

 
 SETTLEMENT AGREEMENT
The Florida High School Athletic Association, Inc. (the "Association"), Silvana Cook, Shari Robinson, Ernestine Brewer, Scott Pirie, Gretchen Goodlet, and Omar Pasolodos, on behalf of themselves and on behalf of their minor daughters (collectively the "Plaintiffs") make the following settlement agreement (the "Agreement"):
A. The Plaintiffs on their behalf and on behalf of their minor daughters filed a lawsuit against the Association, Silvana Cook. et. at., v. Florida High School Athletic Association, U.S. District Court, Middle District of Florida, Jacksonville Division, Case number: 3:09-cv-547-TJC-HTS (the "Lawsuit").
B. The Lawsuit includes allegations about the Association's Policy 6 (referenced as "Policy 6") as adopted by the Association's Board of Directors.
C. The Plaintiffs and the Association desire to settle and resolve all claims for relief alleged in the Lawsuit.
Therefore, the Plaintiffs and the Association agree as follows:
Section 1: Compliance with Law. The Association will comply with all state and federal nondiscrimination laws and policies that are applicable to state athletic associations, including the Florida Educational Equity Act, the Equal Protection Clause of the U.S. Constitution, and Title IX of the Education Amendments of 1972 (including its interpreting regulations and the 1979 Policy Clarification).
Section 2: Retaliation prohibited.
A. The Association, including its employees and agents, will not retaliate against any of the Plaintiffs, Plaintiffs' children, anyone who played a role, formally or informally, in the Lawsuit, or anyone else who reports or complains about a violation of the laws, regulations or policies outlined above.
B. The Association further agrees to affirmatively inform its employees, agents and member schools that retaliation for participation in the Lawsuit is contrary to law, a violation of this Agreement, and contrary to the Associl:~tion's policies.
C. Any person charging retaliation under this section may bring his or her charge directly to the Association's Infractions Appeals Committee for consideration and response. The Chair of the Infractions Appeals Committee shall first decide whether the charge is credible and persuasive. If so, the entire Infractions Appeals Committee shall consider and decide the merits of the charge. In considering the charge, the Infractions Appeals Committee shall conduct an inquiry into the claim, may hold hearings as needed, shall determine whether retaliatory act has occurred, and shall prescribe remedies as it deems appropriate. The decision of the Infractions Appeals Committee on a charge of retaliation under this section shall be final.

D. Any person charging retaliation is also entitled to pursue other remedies at law.
Section 3: Changes to Policy 6.
A. The Association will not make changes to Policy 6 in a manner that treats one gender differently from the other. For purposes of this section, any change that causes an adverse impact on proportionately more of one gender than on the other shall constitute a violation of this section. Sports participation opportunities and benefits are to be measured by the girls and boys actually playing sports: not by including illusory opportunities they could potentially play.
B. The Association will fully evaluate whether one gender is being treated differently from the other before implementing any change to Policy 6. This evaluation shall be conducted before any such change to Policy 6 is considered or adopted by the Association's Board.
C. The Association shall give' at least two weeks advance written notice of any proposed change to Policy 6 to the following person: Nancy Hogshead-Makar clo Florida Coastal School of Law, 8787 Baypine Road, Jacksonville, Florida 32256. The basis for the proposed changes shall be provided with the written notice.
D. The Association, shall within ten (10) business days from full execution of this Agreement, provide to Plaintiffs' counsel a list of member schools known to the Association to have made changes to their schedules following adoption of the amended Policy 6 in April 2009 and did not return to the pre-April schedules following rescission ofthe amended Policy 6 in July 2009.
Section 4: Training.
A. At the Association's Representative Assembly in January 2010, the Association will provide training to the attendees about their obligations under Title IX and other applicable gender equity laws. Such training shall.be one hour in length and presented to the entire assembly in one session and as a single group.
B. At the Association's Compliance Seminars scheduled for July 2010 and scheduled annually thereafter through Summer 2015, the Association will provide training to the attendees about their obligations under Title IX and other applicable gender equity laws. For the Compliance Seminars during the summers of 2010, 2011, and 2012, the training shall be in one hour segments presented to all participants in one session and as a single group, without competing seminars or events. In the years thereafter, the Association may hold the training in 50 minute segments as part of its usual concurrent sessions.
C. All training required by this Section shall be conducted by a qualified trainer selected by Plaintiffs' counsel, with agreement of the Association. It is understood that the trainer will be a civil rights, education, or Title IX attorney.
2

D. The Association shall be responsible only for paying reasonable travel expenses for the trainer, including reasonable charges for air fare (coach), meals, and transportation.

E. All training required by this Section shall be recorded by video and audio. Beginning in September 2010 and thereafter, the most recent training session, including the recording and materials, shall be posted to the Association's website so that the training session and all materials are available for viewing by any interested person. .

Section 5: Publication of this Agreement.

A. The requirements of this Agreement shall be explained in writing to all of the Association's management employees and board members.

B. The Association will make copies of this Agreement and make them available to

the public on request. The Association also will post a copy of this Agreement to its website

through the calendar year 2015.

.

C. The terms of this Agreement will not be considered confidential.

Section 6: Notice of violation and opportunity to cure. In the event that Plaintiffs have reasonable grounds to believe that the Association has violated Sections 4 or 5 of this Agreement, they shall give the Association at least thirty (30) calendar days written notice of the alleged violation and an opportunity to cut:e the alleged violation within that time frame before instituting legal action to compel enforcement of this Agreement. Written notice of violation under this section shall be delivered by facsimile, email, or certified mail to the Association's executive director and notice shall be considered given on receipt.

Section 7: Monetary damages. The Plaintiffs hereby waive, relinquish and give up all claims arising out of this litigation against the Association for monetary damages, including compensatory damages, consequential damages, and punitive damages.

Section 8: Payment of legal fees and costs. The Association shall pay to the Plaintiffs' attorneys the sum of $41,200 as attorneys' fees and legal costs. This sum shall be paid by the Association within fourteen (14) business days from full execution of this Agreement by all parties.

Section 9: Release by Plaintiffs. In consideration of the covenants and promises made in this Agreement, the Plaintiffs (on their behalf and on behalf of their minor children, personal representatives, and any other person or entity who may be entitled to make a claim on their behalf) fully and freely release and discharge the Association and its employees, officers, and board members, from all claims, charges, actions and causes of action pursued in the Lawsuit up and until the date of execution of this Agreement.

3

Section 10: Dismissal of Lawsuit.
A. The Plaintiff~ and the Association hereby stipulate for the dismissal of the Lawsuit, without prejudice, each party to bear its own attorneys fees and costs except as otherwise stated in this Agreement. The respective legal counsel for Plaintiffs and for the Association will sign and file the necessary' stipulation to effectuate this section pursuant to Rule 41(a), Federal Rules of Civil Procedure, along with a request for the Court to enter an order of dismissal per this Agreement.
B. The parties to this Agreement stipulate for the Court to retain jurisdiction through the calendar year 2010 for the enforcement of this Agreement. Such stipulation shall be included in the submission to the court regarding dismissal pursuant to Rule 41 (a) as stated above.
Section 11: Remedies.
A. Any minor child, by and through his or her legal guardian, who participates in sports at any school that is a member of the Association, has standing to enforce the provisions of this Agreement.
B. ln any action or proceeding to enforce the requirements of this Agreement, the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. It is the intent of the parties to this· Agreement that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
C. The parties to this Agreement stipulate and agree that the terms, conditions and covenants of this Agreement may be enforced by injunctive relief by a court of competent jurisdiction. The parties further agree that no bond will be required for such injunctive relief and stipulate to an expedited hearing on any such request made to a court.
D. The remedies outlined in this section are cumulative with any other remedy available at law or equity, and should not be construed to limit the available remedies in any way.
Section 12: Term of Agreement. Except as otherwise stated in this Agreement for a particular covenant or obligation, the term of this Agreement shall run through December 31, 2015.
Section 13: Miscellaneous.
A. This Agreement represents the entire agreement of the parties. There are no oral promises, representations or agreements outside the express agreements set forth in writing in this Agreement.
B. This Agreement may not be.amended, modified or changed in any way except by written document executed by each of the parties to this Agreement.
4

c. The parties to iliis Agreement intend that iliis Agreement is an 8COOrd and
satisfaction ofall claims made in the Lawsuit
D. The partios hereto agree thai this Agreement shall not be construed for or against any pllrty hereto because thal patty dndled aU or part ofthis Agr1:ement.
E. .Each party to this Agreement acknowledges that he or she had ad~ opportuIJity to read and understand this Agreement in full.
F. This Agreement shall be govemed and COIIStrued under the laws of the United States of America and under the law ofFlor;ida.
o. The date of execlltion of this Agrcancnt shall be deemed to be that date on which
all parties to this Agreement have: signed where iDdicatedbelow emd a copy of the fully ~1lClItcd Agreement has been furnished to the Association. •
SILVANA COOK, on belJldf of her DliIlor daughter,
Ut#+ee f!."k
Dlt~ "'1",41
llOB SON, on behalf of her mJDordaughter,
~."-~
ERNESTINE BREWER, on bebalf of ber millor daughter,
'D£aiC.d: .k.',.~, ~.J .
5

 
 Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 1 of 7
U.S. District Court Middle District of Florida (Jacksonville) CIVIL DOCKET FOR CASE #: 3:09−cv−00547−TJC−HTS

CLOSED

Cook et al v. Florida High School Athletic Association Assigned to: Judge Timothy J. Corrigan Referred to: Magistrate Judge Howard T. Snyder Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/16/2009 Date Terminated: 10/21/2009 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Silvana Cook on behalf of her minor daughter

represented by David F. Baron Baron &Herskowitz Ph−1 / Suite 1704 9100 S Dadeland Blvd Miami, FL 33156 305/670−0101 Fax: 305/670−2393 Email: David@bhfloridalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Wayne Hogan Terrell Hogan, PA 8th Floor 233 E Bay St Jacksonville, FL 32202 904/632−2424 Fax: 904/353−4418 Email: hogan@terrellhogan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A. Goller Terrell Hogan, PA 8th Floor 233 E Bay St Jacksonville, FL 32202 904/632−2424 Fax: 904/632−0549 Email: lgoller@terrellhogan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hogshead Florida Coastal School of Law Suite 255 8787 Baypine Rd Jacksonville, FL 32256 904/680−7784 Fax: 904−680−7771 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Shari Robinson on behalf of her minor daughter

represented by David F. Baron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Wayne Hogan

Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 2 of 7

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A. Goller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hogshead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ernestine Brewer on behalf of her minor daughter

represented by David F. Baron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Wayne Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A. Goller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hogshead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Scott Pirie on behalf of his minor daughter

represented by David F. Baron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Wayne Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A. Goller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hogshead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Gretchen Goodlet on behalf of her minor daughter

represented by David F. Baron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Wayne Hogan

Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 3 of 7

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A. Goller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hogshead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Omar Pasolodos on behalf of his minor daughter

represented by David F. Baron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Wayne Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A. Goller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hogshead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Florida High School Athletic Association

represented by Lindsay Dennis Swiger Holland &Knight, LLP Suite 3900 50 N Laura St Jacksonville, FL 32202 904/353−2000 Fax: 904/358−1872 Email: lindsay.swiger@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark G. Alexander Alexander DeGance Barnett Suite 1200 225 Water St Jacksonville, FL 32202 904/345−3277 Fax: 904/345−3294 Email: mark.alexander@adblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Bedoya Barnett Alexander DeGance Barnett Suite 1200

Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 4 of 7

225 Water St Jacksonville, FL 32202 904/345−3277 Fax: 904/345−3294 Email: michelle.barnett@adblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard E. Ireland , Jr. Clayton−Johnston, PA 18 NW 33rd Ct Gainesville, FL 32607−2553 352/376−4694 Fax: 352/371−7336 Email: LIreland@Clayton−Johnston.com ATTORNEY TO BE NOTICED

Amicus USA

represented by Emily Halpin McCarthy US Department of Justice − Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202−305−3690 Fax: 202−514−8337 Email: emily.McCarthy@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Iris Goldschmidt US Department of Justice − Civil Division 950 Pennsylvania Ave NW Washington, DC 20530 202−514−4092 Fax: 202−514−8337 Email: iris.goldschmidt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loretta King US Department of Justice − Civil Rights Division Suite 4300 950 Pennsylvania Ave NW Washington, DC 20530 202/514−4092 Fax: 202/514−8337 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/16/2009
06/17/2009 06/17/2009

# Docket Text
1 Complaint: Injunctive Relief Sought against Florida High School Athletic Association with Jury Demand (Filing fee $ 350 receipt number J032630) filed by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Attachments: # 1 Exhibit Administrative Guidelines)(PAM) (Entered: 06/16/2009)
2 AMENDED STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Divisional Judges on 5/25/2005. (PAM) (Entered: 06/17/2009)
3 ENDORSED ORDER OF RECUSAL. The Clerk is directed to reassign this case. Senior Judge Howell W. Melton recused. Signed by Senior Judge Howell W.

Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 5 of 7

06/17/2009 06/17/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/22/2009 06/22/2009 06/24/2009 06/24/2009
06/26/2009

Melton on 6/17/2009. (JAE) (Entered: 06/17/2009)
4 Case Reassigned to Judge Timothy J. Corrigan. New case number: 3:09−cv−00547−J−32−HTS. Judge Howell W. Melton no longer assigned to case. (PAM) (Entered: 06/17/2009)
5 NOTICE by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson re 1 Complaint of Representation of Plaintiffs (Hogan, Wayne) Modified on 6/17/2009 (PAM). (Counsel notified to place the case number on all future pleadings) (Entered: 06/17/2009)
6 MOTION for temporary restraining order (on notice) by all plaintiffs. (Hogan, Wayne) (Entered: 06/19/2009)
7 MEMORANDUM in support re 6 Motion for temporary restraining order filed by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 06/19/2009)
8 AFFIDAVIT of Silvana Cook re: 7 Memorandum in support, 6 MOTION for temporary restraining order (on notice) by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 06/19/2009)
9 AFFIDAVIT of Ernestine Brewer re: 8 Affidavit, 7 Memorandum in support, 6 MOTION for temporary restraining order (on notice) by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 06/19/2009)
10 AFFIDAVIT of Omar Pasolodos re: 8 Affidavit, 9 Affidavit, 7 Memorandum in support, 6 MOTION for temporary restraining order (on notice) by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 06/19/2009)
11 MOTION for miscellaneous relief, specifically Waiver of Security by all plaintiffs. (Hogan, Wayne) (Entered: 06/19/2009)
12 AFFIDAVIT of Leslie A.Goller re: 11 MOTION for miscellaneous relief, specifically Waiver of Security by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 06/19/2009)
13 MOTION for preliminary injunction by all plaintiffs. (Attachments: # 1 Text of Proposed Order (Proposed) Preliminary Injunction)(Hogan, Wayne) (Entered: 06/19/2009)
14 MEMORANDUM in support re 13 Motion for preliminary injunction, 8 Affidavit, 9 Affidavit, 10 Affidavit filed by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 06/19/2009)
15 NOTICE of Appearance by Mark G. Alexander on behalf of Florida High School Athletic Association (Alexander, Mark) (Entered: 06/22/2009)
16 NOTICE of Hearing: Telephone Scheduling Hearing set for 6/23/2009 at 3:00 PM in Courtroom 10 D before Judge Timothy J. Corrigan. Counsel for plaintiff shall initiate the telephone conference. (MD) (Entered: 06/22/2009)
17 Minute Entry. Status/Scheduling Conference held before Judge Timothy J. Corrigan: conference held on 6/23/2009. Court Reporter: Shannon Bishop (SRW) (Entered: 06/24/2009)
18 ORDER finding as moot 6 Motion for temporary restraining order; setting 12 Motion for preliminary injunction for evidentiary hearing on 7/17/09 at 9:30 a.m. (Courtroom 10D); defendant's responsive papers due 7/8/09; plaintiff's optional reply papers due 7/14/09. Signed by Judge Timothy J. Corrigan on 6/24/2009.(SRW) (Entered: 06/24/2009)
19 NOTICE of Co−Counsel Appearance by Leonard E. Ireland, Jr on behalf of Florida High School Athletic Association (Ireland, Leonard) Modified on

Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 6 of 7

06/29/2009 06/29/2009 07/01/2009 07/01/2009 07/08/2009 07/08/2009 07/14/2009 07/14/2009 07/14/2009 07/14/2009 07/14/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009

6/26/2009 (PAM). (Notified counsel to re−file: No signature and to use entire case number on future pleadings) (Entered: 06/26/2009)
20 NOTICE of Amended Notice as Co−Counsel Appearance by Leonard E. Ireland, Jr on behalf of Florida High School Athletic Association (Ireland, Leonard) (Entered: 06/29/2009)
21 NOTICE of designation under Local Rule 3.05 − track 2. Signed by Deputy Clerk on 6/29/2009. (Attachments: # 1 Consent to US Magistrate Judge letter)(MD) (Entered: 06/29/2009)
22 MOTION to dismiss Complaint and Memorandum of Law by Florida High School Athletic Association. (Alexander, Mark) Modified on 7/2/2009 (PAM). (Counsel notified to use correct case number on future pleadings) (Entered: 07/01/2009)
23 REQUEST for oral argument re 22 MOTION to dismiss Complaint and Memorandum of Law by Florida High School Athletic Association. (Alexander, Mark) Modified on 7/2/2009 (PAM). (Counsel notified to use correct case number on future pleadings) (Entered: 07/01/2009)
24 RESPONSE in opposition re 13 MOTION for preliminary injunction filed by Florida High School Athletic Association. (Alexander, Mark) (Entered: 07/08/2009)
25 DECLARATION of Sonny Hester by Florida High School Athletic Association. (Alexander, Mark) (Entered: 07/08/2009)
26 NOTICE of supplemental authority by Florida High School Athletic Association (Attachments: # 1 Exhibit A Scheduling of Games and Practice Time)(Alexander, Mark) (Entered: 07/14/2009)
27 WITNESS LIST by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) (Entered: 07/14/2009)
28 MOTION to file amicus brief, MOTION for leave to file excess pages by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Proposed United States Amicus Brief)(McCarthy, Emily) (Entered: 07/14/2009)
29 REPLY to response to motion re 13 MOTION for preliminary injunction filed by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/14/2009)
30 AFFIDAVIT of Cindy Boulware re: 29 Reply to response to motion by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/15/2009)
31 AFFIDAVIT of Jeffrey Malloy re: 29 Reply to response to motion by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/15/2009)
32 AFFIDAVIT of Joy Becker re: 29 Reply to response to motion by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/15/2009)
33 AFFIDAVIT of Sandra L. Vivas re: 29 Reply to response to motion by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/15/2009)
34 AFFIDAVIT of Maureen R. Weiss, Ph.D. re: 29 Reply to response to motion by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/15/2009)

Case: 3:09-cv-00547-TJC-HTS As of: 03/19/2014 03:44 PM EDT 7 of 7

07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/16/2009 07/16/2009 07/16/2009 07/16/2009 07/30/2009 07/31/2009
10/19/2009 10/21/2009

35 EXHIBIT LIST A−D by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson.. (Hogan, Wayne) Modified on 7/15/2009 (PAM).(Counsel notified to use entire case number on future pleadings) (Entered: 07/15/2009)
36 EXHIBIT LIST E−G by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson.. (Hogan, Wayne) (Entered: 07/15/2009)
37 EXHIBIT LIST H−N by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson.. (Hogan, Wayne) (Entered: 07/15/2009)
38 EXHIBIT LIST O by Ernestine Brewer, Scott Pirie, Silvana Cook, Gretchen Goodlet, Omar Pasolodos, Shari Robinson.. (Hogan, Wayne) (Entered: 07/15/2009)
39 ENDORSED ORDER granting 28 Motion for leave to participate as amicus curiae: United States' extended page amicus brief to remain of record and counsel will be permitted to appear and be heard at the 7/17/09 hearing. Signed by Judge Timothy J. Corrigan on 7/15/2009.(SRW) (Entered: 07/15/2009)
40 NOTICE of Telephone Hearing: Telephone Status Conference set for 7/16/2009 at 9:30 AM in Jacksonville Courtroom 10 D before Judge Timothy J. Corrigan (Court to initiate the call). (SRW) (Entered: 07/16/2009)
41 Minute Entry. Telephone status conference held before Judge Timothy J. Corrigan on 7/16/2009. Court Reporter: L. Marie Splane (SRW) (Entered: 07/16/2009)
42 ORDER finding as moot 13 Motion for preliminary injunction; cancelling 7/17/09 hearing; setting filing deadlines: 7/31/09, 8/21/09, 9/4/09. Signed by Judge Timothy J. Corrigan on 7/16/2009.(SRW) (Entered: 07/16/2009)
43 NOTICE by Florida High School Athletic Association re 42 Order on Motion for Miscellaneous ReliefOrder on motion for preliminary injunction (Attachments: # 1 Exhibit A − Minutes from Board Meeting)(Alexander, Mark) (Entered: 07/16/2009)
44 MOTION for miscellaneous relief, specifically Enlargement of Schedule by Florida High School Athletic Association. (Alexander, Mark) (Entered: 07/30/2009)
45 ENDORSED ORDER granting 44 Motion for enlargement of schedule; the following schedule shall govern these proceedings: Plaintiffs shall file either a response to defendant's motion to dismiss or an amended complaint by 10/13/2009; defendant's response to the amended complaint (if filed) is due 11/2/2009; plaintiffs' and amicus' response to a motion to dismiss that amended complaint (if filed) is due 11/16/2009. Signed by Judge Timothy J. Corrigan on 7/31/2009. (JCD) (Entered: 07/31/2009)
46 Agreed MOTION for Dismissal and for Court to Retain Jurisdiction by all plaintiffs. (Hogan, Wayne) Modified text on 10/20/2009 (DH). (Entered: 10/19/2009)
47 ORDER granting 46 the parties Agreed Motion for Dismissal and for Court to Retain Jurisdiction. The case is dimissed without prejudice. Court to retain jurisdiction until 12/31/10 to enforce the terms and conditions of the Settlement Agreement. The Clerk shall close the file. Signed by Judge Timothy J. Corrigan on 10/21/2009. (MD) (Entered: 10/21/2009)