The DeKalb County Board of Education, for the second time, has delayed granting approval for the construction of a new field house for the high school football program.
During the May 14th regular meeting of the board, Darrell Gill of the Jr. Pro Football program formally made the request stating that new field house would be built with high school football and Jr. Pro funds and that the school system would not be asked for any money. He added that most of the construction would be done with volunteer labor.
The issue was referred to the board's facilities committee, which met May 19th to study the legal and liability aspects of the proposal. The board was to have made a final decision during a special meeting which was held Thursday night (May 28th). But that decision has been postponed again until the next regular meeting on June 11th after Director of Schools Mark Willoughby received a legal opinion from an attorney for the Tennessee School Boards Association warning against possible violations of the federal Title IX law that prohibits discrimination on the basis of sex.
The concern is whether building a new field house for the high school football program, even without school system funds, would constitute a violation of Title IX when there is no similar facility for girls soccer.
Director Willoughby, in a letter to attorney Charles W. Cagle of Nashville, posed the following question: Could the construction of a new field house for a boy's football program on school property result in the need for similar facilities for girls soccer?
Cagle replied with the following response:" Title IX of the Education Amendment of 1973 states that no educational program that receives federal funding shall discriminate on the basis of sex. As a result of the adoption of these amendments, several complaints to the U.S. Department of Education's Office for Civil Rights have been filed concerning athletics. Indeed, several lawsuits have been filed over perceived disparities in boys and girls athletic programs. Many of these complaints/lawsuits arise over facilities that are constructed by support organizations for use by a single team. To be clear, many of these suits and complaints concern the provision of facilities, coaches, equipment, and preferential playing times for a boys athletic team versus the same considerations for a girls team. In each case, the U.S. Department of Education and the Office for Civil Rights has been clear in their rulings: school systems are responsible to see that discrimination does not occur in the provision of these facilities, coaches, equipment, playing time, or other support. Even if the building proposed for DeKalb County is being built by a team support organization, DeKalb County remains responsible for seeing that the girls facilities and supports are equal to those provided to the boys team. If this is not the case, I would advise that plans need to be made to consider alterations in facilities and improvements in supports to bring the girls team into parity with the boys program."
Willoughby said Thursday night that he is not opposed to a new field house but wants the board to be fully aware of the legal issues. "I'm for a field house but I believe the board needs to be aware that should there be a Title IX complaint and should they find out that the facilities are not equal, there's not much of a defense. If the people who come and investigate and tell you to make sure that there's equality and no disparity then you will say ‘yes sir' or ‘yes ma'am' and you will do it."
Willoughby added that the major concern is with athletic programs which have their seasons at the same time of the year. "Let's say that girls soccer was in the spring, you wouldn't have to worry about it, as I understand the law. It is the teams in which their games are going on simultaneously. It doesn't have to be on the same night. But if the boys have a nice locker room and the girls soccer team is playing the next week, they should also have a nice locker room."
According to Willoughby anyone could lodge a complaint whether it be a parent or concerned citizen, triggering an investigation. "Here you've got someone (Jr. Pro and High School Football Program) wanting to give you $50,000 (new building), and they're going to do everything to the building and we've got a federal law that basically says as long as nobody complains you're hunky dori. If somebody complains, you've got to have a facility that is just as good (for another athletic program). It's the federal government and usually they give you two years, but if don't fix whatever they say to fix, we don't get federal funds and we don't operate (schools)."
But whether or not a new field house is built, could the school system already be in violation of Title IX since there is an existing field house and no facility of any kind for the soccer program?
DCHS Football Coach Steve Trapp said he believes building a new field house could actually address some of these very concerns. "We're moving out of a facility (existing field house) and on their (soccer) game nights, we don't have a problem with them using that (existing field house). It's going to be used by the middle school football team when they have a home game and Jr. Pro football has a right to use that when they have games on Saturdays. But when soccer boys or girls, spring or fall, have a game they will be free to use those facilities. I don't think there would ever be a complaint if they are allowed to do that. This will make it better for everybody. They will have a place on their game nights and that's more than they've got right now."
In response, Willoughby said this probably wouldn't solve the problem since the existing field house would not be a place the girls soccer team could call their own.
Gill, during Thursday night's meeting, renewed his request for board approval. "I would like to see you approve it just for the fact that our kids have worked hard and our parents have worked hard. We've got a great opportunity to get a nice facility at no cost to the county. I hate to see our kids deprived because we're worried about somebody complaining."
Board member W.J. (Dub) Evins III said he came to the meeting Thursday night prepared to vote for the request but now has reservations after learning of Cagle's legal opinion.
Board member Bruce Parsley said he felt it was unfair to compare soccer and football. "I just don't think we can compare football with girls soccer. I think you compare girls soccer with boys soccer, as long as they're even, that's fine. Or baseball and softball, or girls basketball and boys basketball, but you can't compare football because it's not an exclusive male sport."
Board member Kenny Rhody responded, "I can't see us not being able to provide this for our kids because of fear of what might happen. Somebody might complain, but our kids need this."
Board member Johnny Lattimore made a motion, which was approved, to postpone final action until the June 11th school board meeting. In the meantime, Willoughby will ask Cagle to give his legal opinion as to whether the school system would be in compliance with Title IX by allowing the girls soccer, middle school football, and Jr. Pro football programs to share use of the existing football field house during the fall sports seasons. Since neither of the teams play at the same time, each one could use the facility on their particular game day
The new fieldhouse, a 50 x 70 foot block exterior structure with a metal roof, would be located near the existing facility between the practice field and playing field. It would be for the Tiger football program complete with a dressing room area, locker room, training room, utility room, showers and bathrooms, an office for the coach, and two dry storage areas, one of which would be for the youth football league.
Willoughby, in his letter to Cagle, also asked if "there are specific building requirements of which the board should be aware concerning the construction of the football field house."
In his response, Cagle wrote, " I am advised that the field house is to be constructed on school board (public) property and that the cost for this construction is to exceed $25,000. As such, the building must conform to the laws relating to construction of public works projects."
"As this is new construction and not a renovation of, or an addition to, an existing structure and, since the site of the construction is to be on school board property with a cost exceeding $25,000, the law states clearly that there must be plans, specifications, and estimates that are prepared by a qualified registrant (in this case, a licensed architect or engineer). This school board has the duty to insist upon compliance with the law and is the agency against whom fines will be levied for non-compliance."
"I know the school board appreciates the citizens who head this effort. However, please be aware that there are legal and programmatic considerations outlined in this memorandum relating to further specific responsibilities of the school board in the acceptance of the offer."